Eventually they found a beautiful mountain lodge for the ceremony, pie and dancing. But first, two different venues told them they should probably take their festivities elsewhere.
That story hovered in my mind Friday as I read the Supreme Court’s 6-3 decision in 303 Creative LLC v. Elenis. I thought to myself, not for the first time, “Maybe this would make sense if I had gone to law school.” Justice Neil M. Gorsuch’s majority opinion upholds the right of Colorado designer Lorie Smith to open a straights-only wedding website design business. For the state to restrict her from doing so, he writes, would violate her free speech rights under the Constitution. “Tolerance, not coercion, is our Nation’s answer,” he rather grandly concludes.
If “tolerance” seems like an upside-down way of describing the latitude to refuse services to certain classes of Americans, it’s just part of a slick, almost surreal piece of legal writing that, for this civilian, could only be countered by blinking hard and remembering my real friends turned down by wedding venues.
What’s strange about the opinion? First of all, there is the supposed harm to the plaintiff. Smith, by her own account, is not a designer of wedding websites. She is merely an aspiring wedding-website designer who reportedly dreamed from childhood of the heterosexual wedding websites she would someday create. While one can admire the particularity of this vision, her plight pales a bit beside the counterweight of gay couples trying to plan weddings without facing discrimination.
On top of that, according to the mind-blowing reporting of the New Republic’s Melissa Gira Grant, a 2016 email included in the plaintiff’s filings from a gay man asking Smith for wedding design services is apparently fake. His contact information led Gira Grant to a straight, baffled, married web designer who says he would have had no reason to contact Smith.
Then there is the argument itself. A wedding website is an example of “expression,” sure — both sides agree on that. But Gorsuch, following a lower court, calls such a website “pure speech,” as if no services were being provided and the primary point of the website was to express the designer’s views on matrimony. In any case, he argues, the right of protected classes to equal treatment holds no weight before the free speech rights of expressive vendors: “When Colorado’s public accommodations law and the Constitution collide, there can be no question which must prevail.”
This seems awfully odd if only because there is such an obvious comparison to interracial marriage — historically anathema to certain religious groups but not, in my lifetime, something for which vendors could legally withhold services. But maybe I was the crazy one. So I asked for help from Lewis and Clark Law School professor James M. Oleske Jr., whose 2015 article comparing religious exemptions for interracial marriage and same-sex marriage is cited by Justice Sonia Sotomayor in her dissent.
Oleske, who co-authored an amicus brief in the 303 Creative case, acknowledged that in exceptional cases, “when a service provider’s provision of services would objectively be viewed as sending the provider’s own message, … application of a public accommodations law can violate the First Amendment.” But, he wrote in an email, “based on how 303 has actually operated its business to date, making websites for entities containing content that no reasonable observer would attribute to 303 as opposed to the customer, we argued that this case did not fit the exception.”
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.”
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.”
These are strange times, in which those of us without a legal background may watch our rights recede — as women, as people of color, as members of the LGBTQ community — without necessarily feeling able to argue back. We are left trying to make sense of arguments that appear to cut against common sense and common good. For the moment, all we can do is turn to those who do have that training — and speak up about the moments when, in the real world, people lose out on equal opportunity as a consequence of such decisions.
