303 Creative: If You Want To Know Who the Haters Are, Just Listen to What They Say

 If you want to know who hates whom, just listen to what they say. Here are some tweets on 303 Creative from some "tolerant and inclusive" law profs:

1. U Michigan Law Prof Barb McQuade: “I have a religious objection to bigots. Can I now deny them services, too?”

2.  Prof. Josh Chafetz, Georgetown Law: “6-3 religious bigotry trumps anti-discrimination law.”

3. Also Chafetz: “The law at issue prohibited any business from discriminating on the basis of sexual orientation. It didn't target religious belief in any way. The Court just said that religiously-motivated bigots get a get-out-of-antidiscrimination-law-free card.”

4.  Prof. Eric Segall, Georgia State Law School:“Whatever the constitutional merits of today’s 303 Creative decision, make no mistake, discrimination and hate based on faith is still discrimination and hate. The plaintiff should be ashamed. And there’s nothing “Christian” about this.”

5.  Prof. Laurence Tribe of Harvard Law: “This anti-LGBTQ decision will one day be relegated to the dustbin of history, denounced as wrong from the day it was decided (as Lawrence v. Texas said of Bowers v. Hardwick), and recognized as a demeaning slur on the equal dignity of our fellow citizens.

On Twitter, these law profs say the quiet part out loud.

This is not what they say when they are teaching 303 Creative in the classroom.

But it is what they are thinking when they teach 303 Creative in the classroom!

Imagine being a Christian law student taking their classes!

Notice that Lori Smith did not say--or wish to say--anything hateful about same-sex customers. She wished merely to remain silent--to not speak. She wished to celebrate marriage as defined by God, and to remain silent about same-sex marriage.

303 Creative Oral Argument: Dialogue on Status vs Message

 Here is a dialogue from the oral argument (pages 124-126) between Justice Barrett and Brian H. Fletcher (in support of the respondents):

JUSTICE BARRETT: Mr. Fletcher, what if you have a gay couple who runs a web design business in a college town, and, you know, a big part of their business is developing websites for student organizations, the environmental organization, like, different rec club leagues, whatever. And then you have a Christian organization or Catholic organization that basically stands for and advocates traditional views of marriage. This is the raison d'etre for the club. They host debates, invite speakers, and they want the standard website that this couple provides in their business, which is, you know, graphics that make it look appealing, kind of an About Us page that describes what they do and what their beliefs are. And let's say that this couple, like 303 Creative, has on the bottom of every page like, you know, "Designed" --"Designed by," you know, "Jack and Michael." Everything this club wants to say is an anathema to this couple.

Do they have to --can you compel that speech? Do they have to publish it?

MR. FLETCHER: I don't think they do, Justice -JUSTICE

BARRETT: Why?

MR. FLETCHER: Because I don't think that's a refusal based on status. JUSTICE BARRETT: Okay. This is my question, that's why I asked it, because I think, here, there's a difference of opinion about whether turning down the same-sex couple simply for purposes of a marriage announcement is a turn-down based on status or message. And it seems to me in my hypothetical that the status of the club is inextricably intertwined with the message they want to speak.

So why is it different?

MR. FLETCHER: For a couple of reasons. I think, first of all, just to start with same --the same-sex marriage context, this Court has recognized that that's a circumstance where status and conduct are inextricably intertwined. In Lawrence and Masterpiece, the Court has said refusing to serve for same-sex marriages is discrimination against same --gays and lesbians because status and conduct is inextricably intertwined.

The public accommodations laws and the anti-discrimination laws generally don't work that way in general. We don't think that the expression of particular views is inextricably intertwined with having a particular religion or being a Democrat or a Republican.

In general, in public accommodations laws, we say, when you discriminate against someone because they want you to print a website or serve an event or cater an event for something that you disagree with, we wouldn't say that that's a status-based refusal. And I think that's correct. I --I don't think -JUSTICE

BARRETT: So this is a carve-out that's applicable just to the same-sex context?

MR. FLETCHER: I think it's a context --it's like the Court's recognition in Bray that a tax on yarmulkes is a tax on Jews. There are certain rare contexts where status and conduct are inextricably intertwined, and I think the Court has rightly recognized that same-sex marriage is one of them.

JUSTICE BARRETT: Thank you.

 

Even if for purposes of state public accommodations law discrimination against same-sex marriage or other sexual conduct is treated as status discrimination (as discrimination against gay persons), does this mean that for purposes of the Free Speech Clause refusal to express a message celebrating same-sex marriage is status-based not message-based? Does speech become conduct only when the speech is about same-sex marriage?

Now think about Free Exercise. Does this underinclusiveness in terms of coverage of the law render this law not neutral or generally applicable? If so, where would this lead us?

303 Creative: Questions and Thoughts

1. Does this case involve restrictions on speech, compelled speech, or both?

2. Does this case involve content-based speech restrictions or viewpoint-based speech restrictions?

3. Why are content-based speech laws bad? Why are viewpoint-based speech laws worse?

4. The court holds that the Colorada public accommodations law, as applied to 303 Creative's desire to design websites celebrating traditional marriages but not those celebrating same-sex marriages, restricts "pure speech" on the basis of content. Thus, the compelling interest test applies. Or does the Court apply a categorical rule forbidding compelled viewpoint mandates? ["When a state public accommodation law and the Constitution collide, there can be no question which must prevail."] Does Colorado have a compelling interest justifying its restrictions on 303 Creative's speech? If so, what is that compelling interest and is it the least restrictive means of protecting that compelling interest? Are their many other web designers who could design wedding sites celebrating same-sex marriages? How does this affect the analysis? Does Lorie Smith have a "monopoly" on unique Lorie Smith designs?

5. If the restrictions in this case constitute viewpoint restrictions, does that affect the analysis? If so, how so?

6. Suppose Westboro Baptist Church, a church known mostly for its extreme opposition to homosexuality and same-sex marriage, contacts a gay web designer and asks him to create a web site celebrating the Church's strong anti-gay beliefs. The web designer replies I cannot in good conscience create such a web site for you or anyone else. Under a public accommodations law protecting religion and religious "creed" from discrimination, must the web designer create the Church's web site? Or does the Free Speech Clause protect his right against compelled speech? Unlike Free Exercise, which protects only religious exercise, the Free Speech Clause protects the expressive autonomy of all speakers regardless of whether their viewpoint is popular or offensive.

7. Is 303 Creative a case involving two serious restrictions on free expression? If Lorie Smith (the graphic artist) creates a web site expressing a message she wishes to create--celebrating traditional marriage--what happens under the public accommodations law? This speech she wishes to create triggers an obligation to create speech she wishes not to create--web sites celebrating same-sex marriage. Are we dealing with one or two abridgements of freedom of speech? Is this based on the content or viewpoint of her expression?

8. Consider this powerful passage from Justice Gorsuch's majority opinion:

  "All manner  of  speech—from  “pictures,  films, paintings,  drawings,  and  engravings,”  to  “oral  utterance and the printed word”—qualify for the First Amendment’s protections; no less can hold true when it comes to speech like Ms. Smith’s conveyed over the Internet." 

9. Now consider this passage:

"As surely as Ms. Smith seeks to engage in protected First Amendment speech, Colorado seeks to compel speech Ms. Smith does not wish to provide.   As the Tenth Circuit observed,  if  Ms.  Smith  offers  wedding  websites  celebrating marriages she endorses, the State intends to “forc[e her] to create  custom  websites” celebrating  other  marriages  she does not.  6 F. 4th, at 1178. Colorado seeks to compel this speech in order to “excis[e] certain ideas or viewpoints from the public dialogue.”…Indeed, the Tenth Circuit recognized that the coercive “[e]liminati[on]” of dissenting “ideas” about  marriage  constitutes  Colorado’s  “very purpose” in seeking to apply its law to Ms. Smith."  6 F. 4th, at 1178."

Does government have any business using coercion to eliminate competing ideas about the definition of marriage from the marketplace of ideas? This is not what free nations do. It is what totalitarian nations do. This is why the compelled speech doctrine is so fundamental to freedom of thought, belief, and expression.

10. Justice Sotomayor says that if Ms. Smith doesn't wish to create art celebrating same-sex weddings, all she needs to do is remain silent about all marriages. But if she chooses to create art celebrating opposite-sex marriages, she is choosing to open herself to being compelled to equally celebrate same-sex marriages.  Thus, Sotomayor concedes that the Colorado law both restricts and compels speech on the basis of viewpoint.

In other words, if Ms. Smith creates art she wishes to create, she must also create art she does not wish to create. If she creates art celebrating traditional marriage, she must also create art celebrating same-sex marriage.This is what I call a double whammy—a double viewpoint-based law. In other words, the law imposes both a viewpoint restriction on speech she wishes to express and a viewpoint compulsion of speech she does not wish to express. If she says 2 plus 2 equals 4, the law requires her to say 2 plus 2 equals 5! The penalty for expressing a viewpoint she wishes to express is the requirement that she must also express a competing viewpoint she wishes not to express.This is a deadly poison to the First Amendment and the right of a speaker both to say what she wishes to say and to not say what she does not wish to say.

11. One last quotation from Justice Gorsuch: "

Today, however, the dissent abandons what this Court’s cases have recognized time and time again:  A commitment to speech for only some messages and some persons is no commitment at all.  By approving a government’s effort to “[e]liminat[e]” disfavored “ideas,” today’s dissent is emblematic of an unfortunate tendency by some to defend First Amendment values only when they find the speaker’s message sympathetic.  But “[i]f liberty means anything at all, it means the right to tell people what they do not want to hear.”