Snark at the Supreme Court

Full disclosure: I read 303 Creative v. Elenis because I was going to write a screed about how the media has gotten this case all wrong. A few days ago NPR introduced a story about the case by saying “The Supreme Court made it lawful to discriminate against LGBTQ+ people.” (I’m paraphrasing, but that was the thrust). I turned off the radio, because at the time I thought this was a gross oversimplification of what happened. But it turns out in the immortal words of my 2008 Facebook relationship status: it’s complicated. Or put another way, I was wrong.

To the uninitiated, Lori Smith, a website designer (at least supposedly a website designer, more on that below) and owner of a business called 303 Creative, sought an injunction so that the state of Colorado couldn’t penalize her if she refused to make websites announcing gay marriages, but still made wedding websites for straight couples. (Smith had never designed wedding website before, but claimed that she was going to start designing wedding websites). Smith claims that gay marriage is contrary to “biblical truth,” (whatever that means) and therefore creating a wedding website for a gay couple would be contrary to her “sincerely held belief.”

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In addition to be being able to provide wedding websites to straight people but not gay people, Smith also wanted to advertise that she would not create gay wedding websites. Given all this, Smith wanted to ensure that she would not be held liable by the Colorado Anti-Discrimination Act (CADA), which prohibits businesses from denying its goods and services to any customer based on “race, creed, disability, sexual orientation, or other statutorily enumerated trait.”

The Supreme Court found in favor of Smith, with Gorsuch writing the majority’s opinion. Gorsuch explained that 1) the production of a website constitutes expressive speech or “pure speech” and 2) the government (in this case, a state government) cannot punish Smith for refusing to engage in speech.

On its face, this is a great idea: the government, whether state or federal, should not be able to compel you to speak. If this doesn’t seem obvious, close your eyes for a minute and repeat this phrase: “President DeSantis.” A President DeSantis or any other toddler-manchild running for president won’t be able to do something like require all of us to put the American flag in our profile photos, because of this basic tenant of First Amendment jurisprudence.

Notably, Smith and the state of Colorado agreed on some facts: first, Smith would not refuse to serve a gay client if the website he or she wanted had nothing to do with marriage. By extension, Smith would refuse to make any website that had a message that contradicted her faith, no matter who the customer was. She would, for example, also refuse to create a website that glorified violence.

Gorsuch clearly states that if Smith said she wouldn’t serve a gay person at all, no matter what the website said, she would have lost in a hot minute. Instead, Gorsuch focused on the idea that almost any government regulation of speech could be done in order to remove unpopular ideas from the marketplace of ideas, and should be regarded with extreme suspicion. He cites to the lower court’s dissenting judge: “ ‘Taken to its logical end,’ Chief Judge Tymkovich warned, [the opposite] approach would permit the government to ‘regulate the messages communicated by all artists’— a result he called ‘unprecedented.’”

I’ll admit this language gave me chills. I found myself nodding along to Gorsuch’s opinion, even though I’m severely disgusted by Smith; her desire to not make wedding websites for gay couples is gross, regressive, and not Christian-like in the least. But the First Amendment usually pops up when considering assholes who want to be assholes publicly, just like the Nazis who also had a First Amendment right to be assholes when they marched in Skokie, Indiana, the home of numerous Holocaust survivors.

The most interesting part of the decision, however, is the conversation between Gorsuch and Sotomayor. Simply put, Gorsuch freaks out about Sotomayor’s dissent and it’s a blast to read. He starts out mildly on page 16 of the decision, when he notes that both Colorado and Sotomayor seem to argue that the creation of a website is not expressive speech at all, but rather a commercial product not entitled to First Amendment protection. Gorsuch blandly notes that this is not what Colorado and Smith actually stipulated to, reiterating that they already agreed that Smith’s future websites were in fact expressive speech.

But in footnote 3 on page 18, Gorsuch starts to warm up:

The dissent labels the distinction between status and message “amusing” and “embarrassing.” But in doing so, the dissent ignores a fundamental feature of the Free Speech Clause. While it does not protect status-based discrimination unrelated to expression, generally it does protect a speaker’s right to control her own message — even when we may disapprove of the speaker’s motive or the message itself. The dissent’s derision is no answer to any of this… It ignores, too, the fact that Colorado itself has, in other contexts, distinguished status-based discrimination (forbidden) from the right of a speaker to control his own message (protected). (Truth be told, even the dissent acknowledges “th[is] distinction” elsewhere in its opinion.) Nor is the distinction unusual in societies committed both to nondiscrimination rules and free expression. Does the dissent really find all that amusing and embarrassing?

(internal citations omitted)

There’s more juicy snark. For instance, on page 21 Gorsuch writes:

Instead of addressing the parties’ stipulations about the case actually before us, the dissent spends much of its time adrift on a sea of hypotheticals about photographers, stationers, and others, asking if they too provide expressive services covered by the First Amendment.

And there’s this salvo:

In some places, the dissent gets so turned around about the facts that it opens fire on its own position. For instance: While stressing that a Colorado company cannot refuse “the full and equal enjoyment of [its] services” based on a customer’s protected status, the dissent assures us that a company selling creative services “to the public” does have a right “to decide what messages to include or not to include.” But if that is true, what are we even debating?

It was at this point that I skipped ahead to the dissent, because Gorsuch’s obvious sneering was fascinating. I admittedly arrived at Sotomayor’s dissent agreeing with Gorsuch but feeling super weird about it, not only because Smith is an asshole but because well, it’s Gorsuch. If he was so interested in government overreach, where was he in the Dobbs decision? Oh that’s right: silently concurring in allowing states to make women second-class citizens. (I still wonder why more men aren’t extremely pissed about that case; perhaps someday they’ll regret their lack of outrage).

Sotomayor comes in hot. First she notes the backlash against gay rights is nothing new; when decades ago women and minorities fought for equal access to goods and services, businesses tried (but failed, thanks to several Supreme Court rulings) to use the First Amendment in order to discriminate. (“The brave Justices who once sat on this Court decisively rejected those claims.”)

Sotomayor then notes that public accomodation laws like CADA were enacted expressly so that assholes like Smith can’t discriminate against people because of an immutable characteristic, like race, religion, sexual orientation, gender, or any other statutorily protected class. Public accomodation laws serve a dual purpose: to allow marginalized groups equal access to goods and services, as well as to equal dignity. In other words, it doesn’t matter if a member of a marginalized group can eventually find another business that will serve them. If a young Jewish girl sees a sign in a shop window that says “no dogs, no Jews,” the fact that another shop might service her family is meaningless; it’s the humiliation of the first shop’s sign that breeds shame and inequality. And the government has a strong state interest in preventing that that shame.

Sotomayor provides other heartbreaking examples: when Jackie Robinson traveled with his teammates, it didn’t matter that he could find a hotel that would accommodate him, what mattered was that he couldn’t stay in the same hotel as his white teammates. When a funeral home in rural Mississippi refused to take the body of an elderly man because he was gay, it left his grief-stricken family desperately searching for another funeral home, eventually finding one seventy miles away. Sotomayor writes:

This ostracism, this otherness, is among the most distressing feelings that can be felt by our social species. Preventing the “unique evils” caused by ‘acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages’ is a compelling state interest ‘of the highest order.’

Mic drop.

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Sotomayor then calls out Smith for what she is: a Trojan horse from the far right, who had *cough* never *cough* designed *cough* a wedding website *cough* ever *cough.* But before she does that, Sotomayor explains — slowly and loudly for the people in the back (Gorsuch) — that public accomodation laws like CADA are exactly that: designed to regulate commercial, public businesses that seek to take advantage of a public marketplace. No one forces anyone to open a business, but if one does, and seeks to make money from the public, there are rules. Sotomayor notes, “[i]f you have ever taken advantage of a public business without being denied service because of who you are, then you have come to enjoy the dignity and freedom that this principle protects.”

Another mic drop.

As more and more public accommodation laws were enacted, the term “public accommodation” began to expand too, from “common inns, carriers, and smiths” to include “restaurants, bars, movie theaters, sports arenas, retail stores, salons, gyms, hospitals, funeral homes, and transportation networks.” We can see where this is going; websites should also be included in this list.

Sotomayor then delivers a whopper of a point that I didn’t consider, even though I knew it at one time. I didn’t consider it despite knowing that Smith is both an asshole and a Trojan horse: for as long as we’ve been enacting public accommodation laws, people have been trying to evade them by using the First Amendment as an excuse. Sotomayor provides a long list of cases concerning business owners — people who wanted to benefit from the public marketplace — who said that having to serve Black people in integrated spaces “violated their core beliefs.”

The Supreme Court rejected every one of those claims. Not to be deterred, business owners again raised the same First Amendment objections to having to serve women. The Supreme Court rejected those claims too. In rejecting both challenges, the Supreme Court explained that having to admit women to previously male-only organizations or Black people to previously white-only establishments did not prevent those organizations from expressing anti-women sentiment, or even racist sentiment. These decisions therefore drew a distinction between “conduct” (the refusal to serve or admit someone) and “speech” (finding that the conduct did not prevent these organizations from engaging is expressive speech).

Sotomayor argues that the case of a website designer is no different. CADA regulates Smith’s conduct — in this case her desire to sell wedding websites to one group of people but not another group — and not her expressive speech. But even if the creation of a website were considered expressive speech, Sotomayor cites a long line of cases holding that when regulating conduct, incidental infringements on speech are permitted. Burning a draft card is undeniably expressive speech, but the government was still allowed to prohibit it because its interest in regulating conduct — in this case, avoidance of the draft — was not designed to “burden expression.”

The same, Sotomayor argues, is true here: Colorado’s interest in enforcing CADA was not designed to burden Smith’s right to expression, but rather her conduct. And more importantly, Sotomayor points out, Smith could simply resolve this by agreeing to serve everyone who wants a wedding website, but only agree to include Biblical quotations or, say not create websites that say “Love is Love.” Problem solved.

This is where Gorsuch’s and Sotomayor’s back-and-forth made my head hurt. In one of Gorsuch’s snarks that seems to respond to this point, (scroll up to see it), he asks: if Smith should be able to control her message, what are we even doing here? The conflict therefore, at its most elemental, is Gorsuch’s and Sotomayor’s differing definition of speech.

Gorsuch thinks the mere act of creating a website that says “Mark and Mark are getting married!” is a form of expressive speech, just as saying “Mark and Lisa are getting married!” is. Sotomayor, on the other hand, sees the creation of a wedding website a commercial product. But even if the creation of a website could be considered expressive speech, the state’s interest in providing equal access and equal dignity overrides any incidental infringement on that speech. This is especially true because, again, when Smith does design a website for Mark and Mark, she can tell Mark and Mark that she only does websites with biblical quotes, or say that she only uses comic sans font. Mark and Mark would likely look elsewhere for their wedding website, and Smith would be spared from doing something she didn’t want to do, without having won the right to put up a sign that says “No Gays.”

Sotomayor also says — without saying it outright — that Smith’s is a big fat liar. Significant, because it seems this whole case is a ruse, a test case to allow our eyes adjust to the continued discrimination and backlash against LGBTQ+ people. And maybe more.

After all, imagine if Smith opposed marriages between people of different races, and claimed that this was a “sincerely held belief” that went against “biblical truth.” Sotomayor reiterates that this is exactly what business owners tried to say after the enactment of the Civil Rights Act of 1964, after it became clear they would have to serve an integrated clientele. The Supreme Court struck down all those challenges, but under Gorsuch’s recent analysis, what would happen if those challenges were renewed now?

Thankfully, outside the law there’s the real world, including the free market. Refusing to make wedding websites for gay couples is the biggest self-own a business owner could do, at least if that business owner actually wanted to make money. After getting through the 70-page decision, I was curious about Smith’s business, so I went to 303 Creative’s website.

It’s clearly fake. This is not a legitimate business; it was obviously created for this lawsuit. Not one example of Smith’s work anywhere. She is indeed a Trojan horse.

But it’s also just bad. It’s no surprise that someone who refuses to accommodate gay couples would have such an inelegant website. (I don’t care if it’s an old trope, it’s still true: women do need gay friends around them to save them from terrible taste). For someone who claims to be “creative” and “expressive,” Smith’s own work is garish, amateur, the opposite of chic. Too many primary colors, 90s-era splashes of paint, stupid font.

It’s so bad, that — assuming 303 Creative is a legitimate business — the free market should dispense with her pretty quickly. And with the Supreme Court going down this road, the free market may be all we have.

Oh, and I’m sorry NPR. You and Sotomayor were right, I was wrong.

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