Dem
51
GOP
49
In 2012, a gay couple living in Colorado decided to get married in Massachusetts, where, unlike Colorado at the time, same-sex marriages were legal. They also wanted to have a wedding reception when they got home. For the reception, they went to a Colorado baker, Jack Phillips, and asked him to bake them a wedding cake. He said he could not bake them a wedding cake because his Christian religious belief was that a wedding was between one man and one woman. They sued him under Colorado's antidiscrimination law. They won and Phillips appealed. In 2018, the Supreme Court got this hot potato. Phillips argued that he did not discriminate against gay people since they were free to buy any product in his shop and he would happily bake them a custom birthday or other cake for anything except a same-sex wedding. The Court punted, ruling for Phillips because it said the Colorado Civil Rights Commission that handled the case was biased. The Court did not rule on whether religious belief was a legal reason to refuse to perform certain work.
Needless to say, finessing the issue of whether religious belief beats state antidiscrimination laws wasn't going to make anyone happy. The anti-gay crowd took another shot at it yesterday, when the Court held a hearing on 303 Creative LLC v. Elenis. The plaintiff, Lorie Smith, who designs websites, would like to get into the business of designing wedding websites, something she does not currently do. She doesn't want to design websites for same-sex couples and wants to be up front about that by announcing this fact on the home page of her business. She argues that she alone should determine what business she is in, and if she doesn't want to design websites that celebrate, say, violence, she doesn't have to. Same for same-sex weddings.
Smith's problem is that state law prohibits even announcing that you plan to discriminate against certain customers. So for example, a barber can't have a sign in his window reading: "I don't know how to cut Black people's hair, so no Black customers, please." Smith is claiming that when the state is telling her that she may not have a notice on her home page stating: "I design Websites for weddings but only for heterosexual couples" the state is restricting her freedom of speech, which it may not do. She claims to be an artist and the state has no business telling artists to produce art they don't want to produce.
Smith's lawyer, Kristen Waggoner, is the same one who handled Phillips' case and she has carefully constructed this one about freedom of speech, not religion, because then she can bring up different arguments than last time. It's a trickier case than last time. Imagine a thought experiment in which, say, famous dinner companion Nick Fuentes went to a Jewish baker and ordered a cake for a party celebrating Hitler's birthday and the baker refused. Can the baker be compelled to bake that cake, with whatever vile message on top Fuentes wants? The Court did not answer that question in the Phillips case.
Colorado Attorney General Phillip Weiser has argued that Smith doesn't have to make websites for weddings if she doesn't want to, but once she is offering to do them to the public, she has to do them for anyone willing to pay her fee. If you want to read a summary of an amicus brief filed by the A.C.L.U. the organization's legal director, David Cole, conveniently sent it to The New York Times, which published it here.
As an aside, Phillips may soon be back in court. A transgender woman has gone to him asking for a lovely blue and pink cake to celebrate her transition. He refused that one, too. You already know where this is going to end up. At some point, John Roberts may be thinking: "This job pays a lousy $280,000 and is a big pain. I could make double or triple that working for a big law firm and have a lot less grief."
The oral arguments at the Supreme Court yesterday went on for 2½ hours, which is very long for oral arguments. Key questions were: "What is speech?" and "Who is speaking?" Is a marriage website the couple speaking to the world or the website designer speaking to the world? While it didn't come up, this seems to be analogous to asking whether newspaper article is the reporter speaking or the person who does the page layout speaking. After all, a marriage website tells the couple's story, not the designer's. Nevertheless the Republican appointees seemed to be looking for a way to let Smith's religious views, however disguised, prevail.
The three Democratic appointees all pushed back. For example, Justice Ketanji Brown Jackson asked Waggoner whether a photography store in a mall could refuse to take photos of Black people on Santa's lap. Justice Sonia Sotomayor asked if people who don't believe in interracial marriage can refuse to serve interracial couples (take that, Justice Thomas!). But Thomas didn't have to respond. Justice Samuel Alito jumped in to catch that ball and throw it back. He said it was unfair to equate same-sex marriage with interracial marriage. Jackson could have then asked him why is it different. The issue is whether a business can violate state law based on the owner's personal beliefs. The nature of the beliefs are secondary. But she didn't want to get into a pi**ing match with another justice. Thomas, who rarely says anything during oral arguments, did astutely note that "this is not a hotel, this is not a restaurant, this is not a riverboat or train" (because the law Smith wants overturned technically falls under "public accommodations.")
Justice Elena Kagan said the notion of speech in same-sex weddings is getting more and more strained. She asked if the rental service that sets up the chairs could refuse to do that for same-sex weddings. Waggoner said that she won't come back with the caterer.
Another thorny question that came up is whether discrimination against LGBTQ people is any different than discrimination against Black people. In general, the Court has held that race-based discrimination is unconstitutional. The three liberal justices kept pushing Waggoner on where the line was. Could a business refuse to serve a disabled couple, for example?
The Phillips case came up when Justice Neil Gorsuch said that Phillips was ordered to take part in a "re-education program." The Colorado Solicitor General, Eric Olson, immediately jumped in and said Phillips was not sent to a "re-education program." Then Gorsuch snapped: "What do you call it?" Olson said: "It was a process to make sure he is familiar with Colorado law."
A ruling is expected in June. (V)