Legal Docket: The right to disagree

NICK EICHER, HOST: It’s Monday the 3rd day of July, 2023.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Nick Eicher.

MARY RIEHCARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket, and wow! Lots to cover after last week’s set of blockbuster opinions handed down by the US Supreme Court.

Each opinion deserves deeper analysis than we have time for here, so rest assured you’ll hear that deeper analysis throughout this week, and today we will give you the basics of what you need to know.

EICHER: For now, we analyze the landmark victory for freedom of speech in the case, 303 Creative v Elenis. 

The opinion reaffirms a foundational American guarantee: freedom of thought and freedom of speech without the government telling you what to say and what to think. 

Many of the headlines in the immediate aftermath of the decision and through the weekend really got it wrong:

REICHARD: Yes, headlines like these: “Supreme Court limits LGBTQ protections” … Website designer “can refuse gay customers” … “Supreme Court rules for web designer who wanted to discriminate against gay clients” … “web designer can refuse business to LGBTQ people” … “Supreme Court rules for website designer who doesn’t want to serve same-sex couples” … and then Time Magazine had a headline: “Supreme Court Ruling Means Gay Marriage is Vulnerable.”

These aren’t just differences of opinion. These headlines are factually incorrect.

On the issue of refusing gay customers, or refusing business to LGBT people, let me debunk something right off the bat: The decision doesn’t mean a sandwich shop can refuse to make a sandwich for a gay person. It doesn’t mean the gym can refuse to admit a lesbian to workout. It doesn’t mean a person who identifies as trans cannot mail a parcel at UPS. 

EICHER: What it does mean is that states with sexual orientation and gender identity laws … cannot use them to trump the Constitution’s guarantee of free speech. Govenment cannot compel artists to say that which violates the conscience of the artist. 

In other contexts, this isn’t controversial. Listen to David Carson, a graphic design poster artist in New York City: 

CARSON: I wouldn’t have done any pro-Trump posters. I wouldn’t do pro-gun posters. I wouldn’t do cigarette advertising. Graphic design has to communicate. For me there's no question that graphic design is art. There's absolutely clients I wouldn't work for and haven't because I just don't agree with where they're coming from. The idea that somebody might be able to come to me and say you have to work on this thing that you don't agree with? That's a scary place to be if as a country or we're gonna have a government start telling artists what they can do or cannot do.

REICHARD: Unlike other headlines I’ve seen, the facts of 303 Creative were no hypothetical “it’ll never happen” sort of thing. 

We’ve all watched for over a decade now what happened to the cake baker in Denver, Jack Phillips. The same law at issue in this case was used to shut down part of his business and violate his rights. 

Kristen Waggoner argued this case on behalf of Lorie Smith at the Supreme Court. Waggoner prepared this commentary for us on the opinion and what it means: 

KRISTEN WAGGONER: The U.S. Supreme Court decision in the case 303 Creative v. Elenis is a major victory for free speech in America. And it’s a timely one, because government censorship of disfavored speech is on the rise.

The decision affirms the promise of our First Amendment: The government cannot force Americans to say things they don’t believe.

Lorie Smith owns 303 Creative. She’s a Christian graphic artist who wants to create custom wedding websites that celebrate God’s design for marriage: as between husband and wife. But she lives in Colorado, where state officials wanted to force her to say things about marriage inconsistent with her faith.

Lorie works with everyone, including those who identify as LGBT. Her lens for deciding whether to design custom projects focuses solely on the message requested, never the person requesting.

So she challenged the Colorado law. She knew her state used the same law against cake artist Jack Phillips to force him to express messages inconsistent with his beliefs.

And now the high court has affirmed Lorie’s right to speak consistent with her beliefs and made clear that all Americans have that right. Government officials cannot misuse the law to compel speech or exclude from the marketplace people whose beliefs it dislikes. This is true whether one shares Lorie’s beliefs or hold different beliefs

The United States is divided over the definition of marriage, and that’s not likely to be resolved anytime soon. The belief that marriage is a unique union between husband and wife is held by people of diverse faiths… and no faith all over the world. For many, the belief is rooted in sacred theological teaching. For others, in a sincere belief that children deserve to have a mother and a father. People can disagree with this definition of marriage. But the Supreme Court finds that attempts to silence this belief are unconstitutional.

The court’s ruling affirms that states can enforce public-accommodation laws to stop discrimination based on who someone is and also apply the First Amendment to stop government-mandated speech. We hear loud demands to conform ideologically under threat of state coercion. That makes the court’s commitment to free speech a hopeful sign.

EICHER: As Justice Neil Gorsuch who wrote the majority opinion pointed out, quoting directly now: “By Colorado’s logic, a gay man could be coerced to create a mural promoting Christian views he finds abhorrent. The progressives decrying the decision may someday appreciate the Court’s protections, and they are shortsighted to assume their views will always be ascendant.”

REICHARD: This line from the opinion caught my eye: “Consistent with the First Amendment, the Nation’s answer is tolerance, not coercion.” 

In dissent, Justice Sonia Sotomayor joined by Justices Elena Kagan and Ketanji Brown Jackson decry the decision as “...a sad day in American constitutional law and in the lives of LGBT people.”

But many people with the foresight to protect the free speech rights of all Americans, not just the ones that government likes, see the wisdom in this decision. 

We’ll have a much deeper dive into the facts, law, and surrounding controversy when we cover 303 Creative in a summertime episode. 

EICHER: But Chief Justice John Roberts expressed concern that it could be the determining factor. Listen to this exchange with Harvard’s lawyer Seth Waxman at oral argument:

CHIEF JUSTICE JOHN ROBERTS: So we’re talking about race as a determining factor in admission to Harvard.

SETH WAXMAN: Race for some highly qualified applicants can be the determinative factor, just as being an oboe player in a year in which the Harvard-Radcliffe orchestra needs an oboe player will be the tip.

ROBERTS: We did not fight a Civil War about oboe players. We did fight a Civil War to eliminate racial discrimination. And that’s why it’s a matter of considerable concern.

The court applied the toughest standard of judicial review, strict scrutiny. To overcome the test, colleges first must show their policies further a compelling interest. The court said the schools failed to meet that here because their diversity goals aren’t measurable. Specifically, training future leaders and promoting a robust marketplace of ideas. Too general to measure.

REICHARD: Biden v Nebraska is the opinion that says the Biden administration had no authority to cancel out student loan debt. The administration relied upon the HEROES Act passed at the start of the Iraq War to suspend student loan payments by servicemembers. That law lets the Secretary of Education “waive or modify” provisions applicable to financial assistance programs for students. The majority found he had instead transformed the law, not merely modified it. 

We’ll ask David Bahnsen to weigh in on the economic import of that case, and that’s a little later today. 

EICHER: In the case of the letter-carrier who didn’t want to be forced to choose between the sabbath day and his job, this one was unanimous. It increases the burden on employers who want to deny religious accommodations to employees. Here, a Christian man asked to have Sundays off. USPS honored that request at first, but supervisors said the man’s absence made for morale problems for other workers. 

But that’s not enough to satisfy Title VII of the Civil Rights Act of 1964. That requires an employer faced with a religious accommodation request to show that granting it would substantially increase the cost of doing business. Not merely the effect on co-workers. Case remanded, and so the religious discrimination case can proceed. 

REICHARD: Lastly, a unanimous decision important to trademark law. The legal question in (Abitron Austria GmbH v Hetronic International) was whether the owner of a trademark registered in the U.S. can recover damages for use of that trademark outside the U.S. Answer: No; the presumption is that legislation usually applies only within the territorial jurisdiction of the US. Absent Congressional language to the contrary, that holds true here. 

As a practical matter, U.S. trademark owners will have to sue in foreign jurisdictions to enforce against trademark infringement outside the U.S. 

And that’s this week’s Legal Docket!

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