A Second Bite At The Apple 🍎

My wife ⁦@katzish⁩ tries to make some sense of nonsense: “We are left trying to make sense of arguments that appear to cut against common sense and common good”: I’m not a lawyer. But I see what the same-sex wedding website case will mean.) https://t.co/q2guxdXrcG

— Kara Swisher (@karaswisher) July 1, 2023

From state Attorney General Phil Weiser’s perspective, Smith’s business shouldn’t be treated differently than anything else. Any business could call itself a creative enterprise. A coffee shop could say the lattes it steams are creative works of passion. A tire repair business owner could say replacing tires is a passionate devotion to making people safer on the road. 

“You do get to define what your product is,” Weiser said. “Your product can be a book or a painting, but once you make your product you can’t discriminate against certain customers based on who they are. If you allow this loophole, thinking somehow this expressive interest exception is a minor exception, we are deeply concerned how this will run roughshod through the public accommodation requirements.”

I’m trying to figure out what’s wrong with that argument.

I have settled my mind about the argument that the plaintiff didn’t suffer harm. The fact is, she was operating “303 Creative” when she sued to enjoin Colorado from suing her for expanding her business into wedding websites in violation of Colorado law.

That gives her standing, is the long and short of it. The confusion on this point is what comes of commentary by non-lawyers.

But there’s a good question raised here:

In the end, it was Sotomayor’s flaming sword of a dissent that translated my perplexity into legal logic. She calls the argument that Smith’s business should be shielded from anti-discrimination law because it would be offering custom websites “wrong. Profoundly wrong.” Consider a company that does school photos, she writes: “It may not deny those services to multiracial children because the owner does not want to create any speech indicating that interracial couples are acceptable.” 

303 Creative could include whatever message it wants in wedding websites, Sotomayor points out. But, she notes, “the only thing the business may not do is deny whatever websites it offers on the basis of sexual orientation.”

 The majority says Smith (the plaintiff) wants to not speak, and Colorado wants to compel her to speak. I understand how refusing to speak can be protected by the Fifth Amendment. I confess I don’t understand how refusing to speak is protected by the First Amendment, especially in the arena of public accommodations law.

On that point, the court’s majority disagreed. So what now? How might this affect other protected groups — say, those interracial couples? “The majority notably does not attempt to cabin its opinion to same-sex couples,” Oleske wrote in response to my question, “and attempting to do so would contradict the free speech principles the majority cites.”

The defense of the majority I’ve read is that the ruling is limited to “creative acts.” Which doesn’t get around the public accommodations problem (area of law, I mean), so it’s not much of a defense.

I can only conclude the defenders of the majority opinion on Twitter (or in op-eds) have not read the dissent. They like the outcome, why bother with the details? (I include in this group George Conway, a lawyer who should know better than to argue his points so poorly. His defense is: “The court said it, I like it, that settles it!”) But Sotomayor’s argument is precisely that the majority ignores public accommodations law in a way that threatens the Civil Rights Act itself (well, they’ve gutted the VRA; time to move on; or backwards, chronologically).

Smith tried to hitch her argument to Hobby Lobby: she claimed a sincere religious belief protected her from a state law based on Federal law and settled(!) case law. Interestingly (or maybe the correct expression is: “Thank God!”), the Court didn’t even take that up. But she also claimed an exception to such laws based on the “expressive content” of her proposed new services. (Here Sotomayor references the fact Smith never tried to sell her new services, which calls into question whether the Court needed to hear this case. That statement is being misread as a tacit challenge to Smith’s standing But Sotomayor never makes that argument.) That, argues the dissent, is where the Court should have rejected the case. I tend to agree.

The crux of the argument is that matter of “expression.” The majority uses it to shoehorn this case under the protection of the First Amendment. But the dissent points out that, under the case law, the proposed behavior of the plaintiff is conduct, not speech; and under public accommodations law, that exempts it from First Amendment protection (because if that wasn’t so, all actions meant to avoid such laws would find safe harbor in the Constitution, and the CRA would be toothless).

The dissent carefully delineates the arguments and, more importantly, case law against the majority opinion. It’s no wonder the dissent is getting little notice. It’s really a quite devastating analysis of the case. Better to ignore it, if you like what the Court did. And the problem with this case is that it runs in the tracks laid down by Dobbs. Not in the legal arguments, but in the rejection of stare decisis. That is the slippery slope here. That is the danger of this opinion, second only to the danger this ruling poses to public accommodations law.

Standing is not the issue here. Don’t let that be the mistake made about this case. This case is walking through the door Dobbs opened. And that is the grave danger ahead: making the law what this Court says it is, despite what has been said in the past. That is a more grave threat to our democracy than Trump’s stupid bleatings.