A primary theme in 303 Creative vs. ElenisThe question, which the Supreme Court heard Monday, is whether a Christian website designer’s refusal to create same-sex wedding sites violates Colorado’s public accommodations law by discriminating against same-sex couples based on their status or whether is protected by the First Amendment. So it seemed like an unbelievable mistake when the designer’s lawyer initially admitted that the designer would have no problem creating a website for an opposite-sex couple that rejects Biblical definitions of marriage.
The bottom line is that the case appears to be a foregone conclusion, as both Chief Justice John Roberts and Justice Brett Kavanaugh appear poised to join the other conservatives in ruling in favor of Smith.
“Yes, she would publish the site,” Kristen Wagoner, the lawyer for the anti-LGBTQ organization Alliance Defending Freedom, began to respond. It was a remarkable moment: Wagoner’s response would have effectively meant that her client, Lorie Smith, was discriminating based on partner status, effectively destroying her legal case.
But, in this Supreme Court, that was not going to hold up. Two of Wagoner’s ideological allies on the Supreme Court, Justices Amy Coney Barrett and Neil Gorsuch, stepped in to fix his response. And that, ultimately, was the real message Monday, a message conservative justices have been sending for the past year: facts and precedents (and what lawyers say, apparently) don’t matter and won’t get in the way of the path of their ideological, extremist ends.
It all started when Barrett asked a question to get Wagoner to say that his client’s opposition to creating same-sex wedding websites was based on message. Referring to a hypothetical heterosexual couple, Barrett said that what they “want to write under the page of the commitment story is this: We are both cisgender and heterosexual, but that is irrelevant to our relationship that transcends those categories. We knew we were soul mates from the moment we met and on and on. Would his client of his publish that site?”
When Wagoner said yes and continued to explain further, Barrett stopped her before she could finish her explanation, pointedly asking, “Though that narrative, I suppose, is inconsistent with your Biblical views on marriage.” Later, to further clarify the point, Barrett said, “So it’s the message that matters and not the sexuality of the partner who asked you to express it?”
With Barrett’s coaching, Wagoner corrected course and said yes.
Later, Gorsuch also maintained that Wagoner’s initial response should not count. Taking note, “[J]just to make sure I understood your colloquy with Judge Barrett,” then laid out exactly the position he thought she should take, for his purposes, in the case: “[T]There are certain heterosexual unions your client wouldn’t talk about either, is that right?
“Certainly,” Wagoner replied, referencing facts that were agreed to by both parties below. (The case is hard to argue because Smith hasn’t actually started making wedding websites and hasn’t denied the existence of same-sex couples and Colorado hasn’t told him he’s breaking the law. Instead, he made the case for preventively, claiming that he fears the application of the state if he did so).
The exchanges, while illuminating given that Wagoner has long argued these kinds of cases for ADF, including the Masterpiece Cakeshop case in 2017, ultimately, it doesn’t really matter. What matters are the people who rescued your errant answer and the vote count they represent.
Although Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson offered convincing hypotheses and rejected the particularly aggressive positions of Justices Samuel Alito and Gorsuch during the two and a half hours of argument, the bottom line is that the case appears to be settled. conclusion with both Chief Justice John Roberts and Justice Brett Kavanaugh appearing ready to join the other conservatives in ruling in favor of Smith.
When they asked about “line drawings” and “hypotheticals”, they were really talking about consequences.
All of which, however, makes some of the questions raised by liberals in the arguments significant on a different front. When they asked about “line drawings” and “hypotheticals”, they were really talking about consequences.
The case is being treated in the press as “a new clash between faith and gay rights,” as The New York Times put it over the weekend, but that’s just what Smith’s lawyers want people to believe. A ruling in favor of Smith is also a ruling that weakens Colorado’s public accommodations law more broadly and, potentially, all kinds of anti-discrimination laws.
As Sotomayor said, “Where’s the line?”
Specifically, she said, “[H]What about people who don’t believe in interracial marriage or people who don’t believe disabled people should get married?
The best Wagoner could muster in response was that “it is highly unlikely that someone would be serving African-Americans in other capacities and would only refuse to do so in a context of interracial marriage.”
“Well,” Kagan quickly pointed out, “it’s not impossible.” However, before they could continue, Alito intervened to stop their line of questioning, another exception for Wagoner from the conservative justices.
Later, however, Jackson posed a specific hypothesis: whether a photographer might try to take only pictures of white children with Santa Claus, all “sepia-toned” to “remind”, in the photographer’s opinion, “the good old days”. .
Wagoner initially said it would be different but, when pressed, admitted: “There are hard lines to draw, and that may be an extreme case.”
In other words, yes, that could be a possibility under the law that Wagoner and the conservative justices want to create.
That was the argument on Monday. Now, we wait to see how Alito, Gorsuch and their colleagues put it on paper, and what remains of our country’s anti-discrimination laws in their wake.