Last week, the U.S. Supreme Court granted permission for Lorie Smith, a Colorado website designer, to refuse to create wedding websites for gay couples in a case that never should have been heard by the nation’s highest court.
The 6-3 opinions had justices using disparate legal arguments about accommodations laws, discrimination, and First Amendment rights, with dueling views seeking to undercut and snipe at the arguments on the other side. There is an ocean of disagreement between the views of the majority and the minority in this case – all which could have been avoided had the court declined to consider the merits of case because it hinged on speculation about something that may or may not happen at some point in the future.
Hypothetics
The case never should have made it to the court. Legal standing, or the right to bring a lawsuit, requires the person bringing the case to show they have suffered injury that can be redressed by a favorable decision. But this case was speculative, based on a fear of something that may happen in the future. Since the website designer hadn’t suffered any harm, the case proceeded as a “pre-enforcement challenge,” based on the premise that a “credible threat” existed in which she could face future penalties for not complying with the state’s anti-discrimination law.
As the majority opinion explains: “While Ms. Smith has laid the groundwork for her new venture, she has yet to carry out her plans. She worries that, if she does so, Colorado will force her to express views with which she disagrees.”
The majority opinion is replete with speculative language such as she “worries,” she “envisions,” she “seeks to,” she “plans to,” and she “intends to.” The majority wrote, “Ms. Smith alleged that, if she enters the wedding website business to celebrate marriages she does endorse, she faces a credible threat that Colorado will seek to … compel her to create websites celebrating marriages she does not endorse.”
The nation’s highest court decided this case based on “fear” of what may happen “if” Smith enters into the wedding website business. The court determined that the Smith case demonstrated a “credible threat” that Colorado “would, in fact, seek to compel speech from her that she did not wish to produce.”
Thanks to reporting by The New Republic, we now learn that Smith’s claim that she had already received an inquiry from a man named Stewart about creating a website for his gay wedding is questionable (at best). In legal filings, Smith’s attorneys provided Stewart’s name, phone number and email address, but when contacted by reporters, Stewart denied making the inquiry, said he isn’t gay, and has been happily married to a woman for 15 years.
The Majority
Colorado officials claimed the case involved only the sale of an ordinary commercial product (website creation) subject to public accommodation laws and any burden on Smith’s speech would be incidental. The court majority disagreed, holding that the wedding websites Smith may create in the future are a creative expression of ideas and speech and thus qualify as “pure speech” protected by the First Amendment, noting, “When a state public accommodations law and the Constitution collide, there can be no question which must prevail.”
While the six-justice majority opinion focused on “Can a State force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead,” the three-justice minority opinion viewed the case as a legal question focused on “conduct, not speech, for regulation,” while arguing that “the act of discrimination has never constituted protected expression under the First Amendment.”
Justice Neil Gorsuch wrote for the majority, joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett. Justice Sonia Sotomayor wrote the minority dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson.
The Dissent & the Wyoming Link
The minority wrote that Colorado’s anti-discrimination law ensures “equal access” to publicly available goods and services while preventing the “unique evils” caused by acts of “invidious discrimination” in the public marketplace. Thus, “if a business chooses to profit from the public market, which is established and maintained by the state, the state may require the business to abide by a legal norm of nondiscrimination. In particular, the state may ensure that groups historically marked for second-class status are not denied goods or services on equal terms.”
The dissent summarizes changing societal norms in our nation’s history, in which laws prohibiting discrimination against Blacks, women, and people with disabilities were enacted.
Colorado’s anti-discrimination law, “though more inclusive than earlier state public accommodations laws, is in keeping with the fundamental principle—rooted in the common law, but alive and blossoming in statutory law—that the duty to serve without unjust discrimination is owed to everyone, and it extends to any business that holds itself out as ready to serve the public. If 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,” the minority wrote.
“Lesbian, gay, bisexual, and transgender (LGBT) people, no less than anyone else, deserve that dignity and freedom,” the minority wrote. “LGBT people have existed for all of human history. And as sure as they have existed, others have sought to deny their existence, and to exclude them from public life. Those who would subordinate LGBT people have often done so with the backing of law. For most of American history, there were laws criminalizing same-sex intimacy,” wrote the minority.
“A social system of discrimination created an environment in which LGBT people were unsafe. Who could forget the brutal murder of Matthew Shepard? Matthew was targeted by two men, tortured, tied to a buck fence, and left to die for who he was,” the minority wrote, citing veteran Wyoming journalist Kerry Drake’s reporting in the Casper Star-Tribune in 1998.
The minority continued, “Backlashes to race and sex equality gave rise to legal claims of rights to discriminate, including claims based on First Amendment freedoms of expression and association,” and the high court historically “was unwavering in its rejection of those claims, as invidious discrimination ‘has never been accorded affirmative constitutional protections.’ ”
“Time and again, businesses and other commercial entities have claimed constitutional rights to discriminate. And time and again, this Court has courageously stood up to those claims—until today. Today, the Court shrinks. A business claims that it would like to sell wedding websites to the general public, yet deny those same websites to gay and lesbian couples. Under state law, the business is free to include, or not to include, any lawful message it wants in its wedding websites. The only thing the business may not do is deny whatever websites it offers on the basis of sexual orientation.”
“This Court, however, grants the business a broad exemption from state law and allows the business to post a notice that says: Wedding websites will be refused to gays and lesbians. The Court’s decision, which conflates denial of service and protected expression, is a grave error.”
Status or Message?
The majority and the minority differ on whether the case should be considered as status-based discrimination (which is forbidden), or the right of a person to control her own messaging (protected by freedom of speech).
The majority argument that it’s not discrimination because Smith will not sell same-sex wedding websites to anyone (she’ll sell only opposite-sex wedding websites), but the minority likens that to a hotel owner recasting its services as “whites-only lodgings” or a large retail store selling “passport photos for white people.” Because Smith would offer some of her services to anyone (including same-sex couples so long as the website isn’t about a same-sex wedding), it’s not discrimination, right? It’s the message, not the status of the person wanting the service, so goes the argument.
The majority took issue with that comparison, noting “our case is nothing like a typical application of a public accommodations law requiring an ordinary, non-expressive business to serve all customers or consider all applicants. Our decision today does not concern—much less endorse—anything like the ‘straight couples only’ notices the dissent conjures out of thin air.”
Gorsuch’s majority opinion made the dramatic claim that “Colorado seeks to compel … speech in order to excise certain ideas or viewpoints from the public dialogue” and “coercive elimination of dissenting ideas about marriage constitutes Colorado’s very purpose in seeking to apply its law to Ms. Smith.” {Internal citations and quotation marks omitted.} Thus if Smith “wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs.”
The minority responded with, “That is an astonishing view of the law” and noted that Smith is free “to include in her company’s goods and services whatever ‘dissenting views about marriage’ she wants.” To abide by an anti-discrimination law in commercial sales “does not conscript her into espousing the government’s message.
Sotomayor wrote that while the consequences of the majority decision “might be most pressing for the LGBT community, the decision’s logic cannot be limited to discrimination on the basis of sexual orientation or gender identity. The decision threatens to balkanize the market and to allow the exclusion of other groups from many services.
A website designer could equally refuse to create a wedding website for an interracial couple, for example. How quickly we forget that opposition to interracial marriage was often because “‘Almighty God . . . did not intend for the races to mix.’ ” Yet the reason for discrimination need not even be religious, as this case arises under the Free Speech Clause. A stationer could refuse to sell a birth announcement for a disabled couple because she opposes their having a child. A large retail store could reserve its family portrait services for ‘traditional’ families. And so on.” {Internal citations and quotation marks omitted.}
Never the Twain Shall Meet
The majority wrote, “It is difficult to read the dissent and conclude we are looking at the same case.” That’s an accurate summary of a case that never deserved the highest court’s attention.
In my view, this is the direct result of the U.S. Supreme Court deciding the merits of an entirely hypothetical case. This legal fiasco (which propped open the door for other hypothetical cases as well as sets the stage for future litigation as discrimination increases) was entirely avoidable.
Cat Urbigkit is an author and rancher who lives on the range in Sublette County, Wyoming. Her column, Range Writing, appears weekly in Cowboy State Daily.
