Legal Docket: Freedom not to speak

MARY REICHARD, HOST: It’s Monday morning, December 12th, and we’re here for another week of The World and Everything in It. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Last week, the biggest free speech case of the term brought rallies and protests outside the U.S. Supreme Court.

The case: 303 Creative, LLC v Elenis.

The question for the justices is whether Colorado’s anti-discrimination law violates the free-speech rights of creative artists. In this case, graphic designer Lorie Smith. Here she is outside the Supreme Court last week.

SMITH: After starting my own design studio, I was excited to expand my portfolio to design custom unique wedding websites that celebrate the beauty of marriage between husband and wife. But my home state of Colorado made it clear that I’m not welcome in that space. And Colorado is trying to force me to create custom, unique artwork to promote ideas inconsistent with my faith and the core of who I am.

Not so long ago, a case called Masterpiece Cakeshop v Colorado Civil Rights Commission presented the same scenario. Masterpiece Cakeshop owner Jack Phillips was at the rally for Smith last week:

PHILLIPS: Colorado is still using the same law that it used to punish me to try and punish Lori. And Lori should be able to decide. She serves everybody like we do at Masterpiece Cake Shop, but decide which messages she creates and which messages she declines to create.

In a way, this case is the sequel to that one. Phillips won, but on such narrow grounds that targeted harassment of Christian business owners, including himself, didn’t stop.

But from Colorado’s point of view: should Lori Smith prevail, the Supreme Court could unravel other anti-discrimination protections. Colorado attorney general Phil Weiser:

WISER: You can't define your service so you exclude an entire category of people. That's what's at issue here. And if there were to be a loophole of the kind discussed, people with disabilities, African Americans, Jews, Muslims, others could find themselves without access to the marketplace.

Both Phillips and Smith hold to a core tenet of all the Abrahamic religions: that marriage is the union of one man and one woman. Not controversial until the Supreme Court made it controversial a few years ago. And then failed to resolve the problems several justices predicted the court was creating.

Christian bakers, florists, photographers, graphic artists—any of a number of creative professionals— are making this argument: that the state has no business commandeering their artistic talents to speak messages in conflict with their religious beliefs that are protected under the Constitution.

REICHARD: Inside the courtroom, Smith’s lawyer Kristen Waggoner was first at the lectern.

WAGGONER: Lorie Smith blends art with technology to create custom messages using words and graphics. She serves all people, deciding what to create based on the message, not who requests it. But Colorado declares her speech a public accommodation and insists that she create and speak messages that violate her conscience.

Waggoner referenced the court’s past decisions rejecting government-compelled speech:

WAGGONER: If the government may not force motorists to display a motto, school children to say a pledge, or parades to include banners, Colorado may not force Ms. Smith to create and speak messages on pain of investigation, fine, and re-education.

Our eyes in the courtroom detected expressions of irritation by some justices as the liberal justices frequently interrupted Waggoner.

First, Justice Elena Kagan, who thought website design is more a matter of typefaces and travel information for wedding guests:

KAGAN: There’s no scripture, there’s no ideology, there’s no nothing.

WAGGONER: There is ideology. And this court has already recognized that there is ideology and different views on marriage...

KAGAN: Okay. So I think that if I understand you, you're saying, yes, she can refuse because there's ideology just in the fact that it's Mike and Harry and there's a picture of these two guys together.

WAGGONER: That is speech. You are announcing a wedding. And if you believe the wedding to be false, then the -- the government would be compelling you to say something that you otherwise wouldn't say, which makes it content-based.

As we mentioned, this wasn’t a problem before the Supreme Court in 2015 got involved with its decision in Obergefell v. Hodges.

That 5-to-4 decision decreed that all 50 states must treat unions of same-sex couples legally the same as they do married couples.

Now-retired Justice Anthony Kennedy wrote that opinion. He announced it in part with this:

KENNEDY: Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.

Laudable to say, but what Justice Samuel Alito wrote then in dissent predicted what’s actually happened since.

The Obergefell decision, quoting now, “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.

“In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women.

“The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.”

… a statement that came to the fore in our case today in 303 Creative.

First, Justice Ketanji Brown Jackson:

JACKSON: I just wanted to say how perplexed I was about the questions that seemed to distinguish this kind of sexual orientation refusal to provide services from the race discrimination. And there were some questions raised about, you know, religion being the basis, but I guess -- and -- and you might be able to help me with this and you might not, but I -- I was fairly certain that, historically, opposition to interracial marriages and to integration in many instances was on religious grounds.

Justice Sonia Sotomayor conflated the issues:

SOTOMAYOR: You're saying, I don't want to serve a particular person, a disabled person, a black and white couple, a disabled couple, a --a gay couple. You're basing it not on the nature of the message, you're basing it on who you're serving.

WAGGONER: I don't think that's a fair characterization. The stipulated facts in this case are that Ms. Smith has LGBT clients. She serves them regularly. She has all kinds of clients.

SOTOMAYOR: Tell me how that's different, by the way. What you're basically saying is, in our Ollie Barbecue case, the company there said, “I'll serve blacks but only on a takeout window, not inside my restaurant because that sends a message that I endorse integration.”

WAGGONER: Ms. Smith isn't looking to send a message through her conduct. She's look --

SOTOMAYOR: No, she -- what you're saying is, I want to give gay couples a limited menu, not a full menu, just the way that luncheonette said.

Waggoner answered, not the same. Her client’s menu of services includes website creation for LGBT people. Say for example that a lesbian asks for a design for an animal shelter. No problem.

But that same person asking for a design of something that demeans the Bible? No, that is a problem.

For the other side arguing for Colorado, state Solicitor General Eric Olson. He argued that the website designer may place whatever she wants on her website. What she must not do is refuse to sell to someone based on a protected characteristic as defined under the state’s public accommodation law.

[Now, interestingly, Solicitor General Olson didn’t use much of the 10th Circuit’s reasoning. To the astonishment of many, Judge Mary Beck Briscoe wrote in that decision that Smith’s work is like a monopoly because she’s the only source of her own designs! And the state’s compelling interest to prevent discrimination trumps the rest. No limiting principle can be found in that.]

Hypotheticals came raining down. Here’s one from Justice Samuel Alito [with Justice Kagan adding levity] before Olson answers:

ALITO: An unmarried Jewish person asks a Jewish photographer to take a photograph for his Jdate dating profile. It's a dating service, I gather, for Jewish people.

KAGAN: It is. (Laughter.)

ALITO: All right. Maybe Justice Kagan will also be familiar with the next website I'm going to mention. So, next, a Jewish person asks a Jewish photographer to take a photograph for his AshleyMadison.com dating profile. (Laughter) I'm not suggesting that. I mean, she knows a lot of things. I'm not suggesting -- okay. Does he have to do it?

OLSON: Well, again, it would -- it would -- what Colorado look -- it depends.

Olson gave the typical lawyer’s answer, “it depends.” If the photographer makes something available to the public, then probably yes, she has to do it. Depends on the facts.

And then an exchange between Olson and Justice Neil Gorsuch in which the justice reminded everyone of another protected characteristic:

GORSUCH: That’s their religious belief. You can't change their religious belief, right?

OLSON: No, but -- but -- well, two --

GORSUCH: And you protect religious beliefs under the statute, right? That is one of the protected characteristics in theory.

OLSON: Yes, and in practice. If it wasn't in practice, we'd have heard about it over -- over the past several years, and -- and my friend has pointed to no example where this has been applied in a --

GORSUCH: Mr. Phillips did go through a re-education training program pursuant to Colorado law, did he not, Mr. Olson?

OLSON: He -- he went through a -- a process that ensured he was familiar with --

GORSUCH: It was a re-education program, right?

OLSON: It was not a re-education program.

GORSUCH: What do you call it?

OLSON: It was a process to make sure he was familiar with Colorado law.

GORSUCH: Someone might be excused for calling that a re-education program.

Whatever you call it, that “training” entailed quarterly compliance reports with details such as how many customers you declined and why, teaching your staff what the state wants them to know, and to sell the customized product whether you like it or you don’t.

The argument lasted more than two hours; it’s worth the listen.

But I’ll end with this exchange between Justice Gorsuch and lawyer Waggoner:

GORSUCH: The objections to compelled speech on religious grounds could include, in fact, do include, some objections with respect to certain heterosexual marriages, that there are certain heterosexual unions that your client would not speak toward either, is that correct?

WAGGONER: Certainly, and that's in the stipulated facts in terms of she declines messages based on the message, and she has declined other projects based on the message that have nothing to do with same-sex marriage.

GORSUCH: So the question isn't who, it's what?

WAGGONER: Always.

That’s her key argument and distinction: that it’s always the message, not the person. But Olson argued for Colorado that it’s only a light burden on Smith to create something that violates her conscience.

But from the tenor of the questions from the majority justices, I don’t think they’ll see it that way.

And that’s this week’s Legal Docket!

EICHER: Mary, how much time do you estimate you spent reading legal briefs, reviewing transcripts, searching for the right audio that captured all the relevant moments here?

REICHARD: Oh, I’d say around 15 hours, maybe a day and a half. And by the way, I was able to listen to the arguments alongside my legal-beagle colleague Steve West as we chatted back and forth online about what we were hearing. Steve’s background as a prosecutor brings out different observations in him than it does me. And that’s useful for all of us.

But, listen, it was time well-spent. We’ll definitely want to feature this case in our Legal Docket podcast Season 4. So what the listener is hearing here is just the beginning and there’s work I didn’t necessarily use, but probably will as we follow this one to the final legal conclusion.

EICHER: Right and there are other interviews you’ll do, facts you’ll need to gather, because there’s a much bigger story to tell.

REICHARD: Oh, always a much bigger story to tell. The why the Supreme Court selects cases as it does to help create clarity in the law, and vindicate the rights of others in similar situations.

And helping WORLD listeners and readers to better understand all of that is why we do what we do.

EICHER: So you see where I’m headed with this: We’ve had really strong, intelligent opinion pieces, we had Steve West’s expert legal analysis day-of, we produced news reports posted online and in email newsletters, and broadcast reports we prepared and distributed to more than 100 radio outlets day-of the oral argument, and I’ll just say I got a kick out of looking at the video outside the Supreme Court, the way the camera was set up, I was able to see our brand-new Washington office window, right there next to the Supreme Court.

But all that and now your work here.

And I just want to emphasize: we can’t accomplish any of this without your help. Listeners. Viewers. Readers. And that’s the importance of our December Grassroots Giving Drive.

REICHARD: Exactly, I do not take it for granted that we have generous givers from all walks of life and we need that. So I’d just ask you to add your support to thousands, tens of thousands of WORLD Movers and keep WORLD supplied and in the battle.

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EICHER: And thanks so much!

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.