303 Creative LLC v. Elenis

In this case from this past Friday, the Court has added a giant loophole to our anti-discrimination laws. How big is the loophole? About the size of a 161'6" super yacht or a Bombardier Global 5000 private jet.

A podcast where we dissect and analyze the Supreme Court cases that have choked our civil rights, like smoke from Canadian wildfires choking New York City

0:00:00.0 Peter: We'll hear argument first this morning in case 21476, 303 Creative LLC versus Elenis.


0:00:11.5 Leon: Hey everyone, this is Leon from Fiasco and Prologue Projects. On this episode of 5-4, Peter, Rhiannon and Michael are talking about 303 Creative LLC v. Elenis. The case centers around a graphic designer, Lori Smith, who says that a Colorado law prohibiting businesses from discriminating against their customers would force her to create content for same-sex couples, contrary to her religious beliefs. Smith's argument is that making a wedding website amounts to expressive speech, and that taking on gay couples as clients would therefore force her to perform speech that she disagrees with. The court's decision, which came down just last week creates a loophole in many anti-discrimination laws with enormous ramifications for civil rights. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:08.8 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have choked our civil rights, like smoke from Canadian wildfires choking New York City. I'm Peter. I'm here with Michael.

0:01:21.9 Michael: Is that happening again?

0:01:23.2 Peter: Yes, it is happening again, Michael. And Rhiannon.

0:01:25.9 Rhiannon: Hey, it's happening in Chicago too.

0:01:28.2 Peter: Well, who cares? But, for the second or third time in a couple of weeks, you look out and it's like, pretty hazy out. Is that a delightful morning fog? No, it's a Canadian wildfire smoke.

0:01:45.5 Rhiannon: Right.

0:01:45.8 Michael: The zeitgeist I miss out on now that I'm not on Twitter. Who knew? More wildfires.

0:01:51.7 Rhiannon: Yeah. Less stress for you though.

0:01:53.7 Michael: Yes.

0:01:54.0 Rhiannon: I'm jealous.


0:01:55.6 Michael: Yes. Yeah, it's good. I love it.

0:02:00.2 Peter: All right. Today, sort of an emergency episode.

0:02:04.5 Rhiannon: Yeah.

0:02:04.5 Peter: It's a short turnaround episode. Today's case 303 Creative v. Elenis. This is a case about free speech and at the time of recording, it dropped today.

0:02:17.6 Rhiannon: Yeah, we are recording this on the day that this opinion dropped.

0:02:20.5 Michael: That's right.

0:02:21.2 Peter: Yeah. More specifically, this is a case about whether a homophobic rat of a woman, who has a wedding design website, can refuse to provide services to LGBT couples on account of she doesn't like them.

0:02:38.6 Rhiannon: That's really it.

0:02:39.3 Peter: Now, Colorado, has anti-discrimination laws that say that businesses must serve people regardless of race, religion, sexual orientation.

0:02:51.3 Rhiannon: Right.

0:02:51.8 Peter: The usual protected classes. But this rodent woman, said that the law violates her first amendment rights because she does not want to create content that promotes the LGBT lifestyle. And today, in a six to three decision, the court agreed with her in a ruling that blasts a giant fucking loophole into anti-discrimination laws across the country.

0:03:20.9 Rhiannon: Yeah.

0:03:22.9 Peter: Rhi.

0:03:24.4 Peter: Yeah.

0:03:25.0 Peter: You're up.

0:03:25.0 Rhiannon: Yeah. Here's a little story and to be honest, there's not a lot of facts here.

0:03:28.7 Michael: No.

0:03:29.1 Rhiannon: We're gonna talk about that later, [laughter], 'cause this case is fucking fake.

0:03:32.3 Peter: Fake case.

0:03:33.7 Michael: It's fake.

0:03:33.9 Rhiannon: But anyways, we'll jump right in. A little bit of legal background, Peter already previewed this, but Colorado has a state anti-discrimination law, CADA, C-A-D-A. It's the Colorado Anti-Discrimination Act. That act prohibits discrimination in public accommodations on the basis of race, creed, sexual orientation, etcetera. Now, about half of the states in the United States have some sort of anti-discrimination laws on the books regarding sexual orientation. Right? So, like Peter said, this case has applicability and it creates a giant loophole really across the country. Now, public accommodations means a lot of things. It's public services provided by the government, of course, but it's also private businesses. What this law says is that private businesses that serve the general public cannot discriminate against people in delivery of those businesses, goods, and services based on sexual orientation. Now, if a business violates the CADA, there can be a variety of different penalties.

0:04:36.7 Rhiannon: There's a possible $500 fine per violation. The business could be ordered to attend mandatory educational programs, or they could be required to keep new records to show their compliance with these anti-discrimination laws in the future. Lots of stuff like that, right? So let's talk about Lori Smith and her business 303 Creative LLC, because importantly, Lori has not suffered any harm or penalty under the law. She has not had to do any of those things that I just mentioned, because her case is, again, utterly hypothetical. Again, we'll touch on that later. 303 Creative is basically a website and graphic design company. Lori says that she is a Christian and she believes that marriage is a union between one man and one woman. Lori is a fucking loser. Okay.

0:05:28.0 Peter: That's right. Dumb piece of shit.

0:05:29.2 Rhiannon: So, Lori says that the anti-discrimination law in Colorado will force her to make wedding websites for gay couples. It's gonna force her to express beliefs that she does not believe in. Really important for how ludicrous this case is, Lori has never made a wedding website for a gay couple or otherwise. She has not made a wedding website period.

0:05:52.1 Peter: Ever.

0:05:52.6 Rhiannon: She says she wants to go into the wedding website business.

0:05:56.5 Peter: She's a bit of an entrepreneur.

0:05:58.1 Rhiannon: Right. Right. And she's filing this lawsuit to make sure she's not gonna have to make wedding websites for gay people whenever she starts that part of her business.

0:06:08.5 Peter: "I was thinking about doing a wedding website business, first things first, though, I'm gonna make sure the Supreme Court says that I don't have to do it for gay people."

0:06:15.9 Michael: That's right.

0:06:16.5 Rhiannon: Right. Yeah. So again, Lori has been forced to do absolutely nothing. She is filing a lawsuit saying her freedom of speech will be violated at some point in the future if a gay couple comes to her asking for a wedding website, a service she does not offer.

0:06:34.5 Michael: Right.

0:06:35.6 Rhiannon: So it's a short background story today, like I said, because there are no facts, there's no story except a bigot filing a lawsuit thinking about a remote unknowable possibility in the future that she might have to do something that she doesn't wanna do.

0:06:50.9 Michael: Yeah. Before we continue, I wanna note, I looked at 303 Creative's website. Based on my experience growing up in Fort Lauderdale where there is a thriving large gay population, her shit is way too bland and boring. I don't think a single gay person in this country would ever come to her for any creative, anything.

0:07:13.4 Rhiannon: Yeah. We'll talk about the request she said she got, right?

0:07:15.9 Michael: Yes, we will. [laughter]

0:07:17.9 Peter: Yeah. Yeah. [laughter]

0:07:19.6 Rhiannon: So there is, though, one more piece of important information about how this case did make it to the Supreme Court even though there is no present conflict or legal harm at all. Lori is not bringing this case by herself, as these cases rarely are brought by some individual lowly aggrieved person filing a lawsuit to protect their rights. She probably didn't even think to file a lawsuit to protect her freedom of speech until an organization of vomit lawyers came to her and they're the ones bringing this case. These organizations are notorious for not just venue shopping, not just filing their lawsuits in federal district courts where they think they will get favorable rulings, they also plaintiff shop. They are looking for people for which to file these lawsuits. So for this specific organization, we have certainly mentioned them before, probably most recently in the Trans Rights episode with Aaron Reed, it is the Alliance Defending Freedom.

0:08:20.4 Peter: Yes.

0:08:21.1 Rhiannon: Gross does not cover it when describing this organization. They are a legal organization with nearly 400 employees, they have an international subsidiary that operates in more than a hundred countries. Their revenue last year was $104 million. The Alliance Defending Freedom wrote the model legislation that Mississippi used to write it's 15-week abortion ban. That's the law that went up to the Supreme Court in Dobbs. The Alliance Defending Freedom are currently and have written tons of model legislation for stripping gay and trans people of their rights that state legislatures across the country are adopting and have already passed. Alliance Defending Freedom represented Hobby Lobby in the Burwell case, they represent the group bringing the lawsuit against the FDA approval of abortion medication, mifepristone. They run a program for training conservative law students called the Blackstone Fellowship. In 2014, the Blackstone Fellowship's website, this has since been scrubbed from the website, but as recently as 2014, that website used to say that the movement quote "Seeks to recover the robust Christendomic theology of the third, fourth, and fifth centuries."

0:09:33.6 Peter: Mm-hmm.

0:09:35.5 Michael: Mm-hmm.

0:09:37.3 Peter: I'm gonna be honest, I'm not entirely familiar with what that is, but it does not sound good folks.

0:09:42.1 Rhiannon: Yeah.

0:09:42.4 Michael: Well, I was gonna say... I was gonna, say we're really winding back the clock there. Like usually it's a few hundred years...

0:09:49.5 Rhiannon: Right. Right.

0:09:50.6 Michael: It's not like 1500 years.

0:09:52.5 Rhiannon: Yeah.

0:09:53.3 Michael: Yeah.

0:09:53.8 Peter: I just looked this up, it's named after Sir William Blackstone...

0:09:57.5 Michael: Right.

0:09:57.8 Peter: Rather than Blackstone the private equity group, which is what I initially suspected.

0:10:04.4 Rhiannon: So of course, a bunch of American vomit politicians have ties with the Alliance Defending Freedom, including former Attorney General Bill Barr, Josh Hawley, Mike Pence, and wouldn't you fucking know it? Supreme Court Justice Amy Coney Barrett, who had extremely close ties to the ADF as a law professor at Notre Dame. So importantly, Lori Smith, a fucking loser, the Alliance Defending Freedom is the money, the organization bringing this lawsuit all the way up to the Supreme Court, and this is not new to them and it's not their first rodeo.

0:10:38.4 Michael: Right.

0:10:39.0 Peter: So let's talk about the law here. This is a First Amendment free speech case, right? Important to note, that this is not a case about freedom of religion per se.

0:10:49.3 Rhiannon: Right.

0:10:49.5 Peter: This is about free speech.

0:10:51.0 Michael: Mm-hmm.

0:10:51.5 Peter: So this murine woman claims that...

0:10:54.6 Michael: Murine, is that like... Is that like rodent?

0:10:57.0 Peter: That's like bovine or ursine, but for rats. Yeah, for rodents.

0:11:00.0 Michael: But for rats. Okay. Okay.

0:11:03.1 Peter: Okay. It might be mice. I... Yeah, it's the rodent one.

0:11:07.8 Rhiannon: I got it. Got it.

0:11:10.9 Peter: For some reason, I know a lot of those. She claims that if she has to create wedding websites for LGBT couples, she will be expressing approval for those relationships, which she does not approve of per her religious beliefs. Part of her argument here is that she will, on these websites, write sort of like personal little messages that express feelings and thoughts about the couple...

0:11:39.3 Rhiannon: Right.

0:11:39.3 Peter: And that if she's doing that, for gay couples, she'll be sort of functionally forced to express these positive emotions that she doesn't really feel towards gay couples. So there is sort of a distinction here, at least, according to her, according to the court. She's not saying she won't serve LGBT couples as a business owner, she's saying that she doesn't want to create expressive content that would implicitly or explicitly endorse LGBT relationships. So in other words, the wedding websites are her protected speech and she thinks that the anti-discrimination law is forcing her to express herself in a way that she disagrees with.

0:12:22.9 Rhiannon: Right.

0:12:23.8 Peter: And the court, in a six to three decision, with a majority written by Neil Gorsuch said, sides with her. Saying that she cannot be compelled by the state to express approval of LGBT relationships. Now, I think before we move on, it's worth stopping here to talk about this little distinction that the court is making.

0:12:46.1 Rhiannon: Yeah.

0:12:46.6 Peter: The entire case hinges on the idea that she's not saying she refuses to serve gay people per se. She's saying she refuses to create expressive content like a wedding website because that's basically being forced to speak in a certain way, which she says violates the first amendment. So Gorsuch specifically says that there are types of business transactions that don't involve compelling, expressive conduct, so would still be subject to anti-discrimination laws. But this is like expression, right?

0:13:18.2 Rhiannon: Yeah.

0:13:19.3 Peter: But can you actually draw a clear distinction here? Like doesn't every business interaction express something?

0:13:28.5 Rhiannon: Right.

0:13:28.8 Peter: Like during the Civil Rights Era, when these public accommodations laws were first being passed. The controversy had centered around businesses refusing to provide basic goods and services to Black people, right? Sit-ins at lunch counters were some of the most famous protests. They were protesting the fact they weren't being served at lunch. Right?

0:13:45.2 Michael: Right, right.

0:13:46.6 Peter: Now, those business owners who refused services to Black people, they were only providing food services, they weren't creating web websites with written content, but they were expressing something too, right?

0:14:00.0 Rhiannon: Absolutely.

0:14:01.1 Peter: They were expressing their belief that Black people were inferior. They weren't writing it somewhere, but they were expressing it by their choice not to serve them. They were expressing their rejection of an integrated society. All discrimination is, is expression.

0:14:18.4 Rhiannon: That's right.

0:14:19.9 Peter: It's an expression of dislike, of hatred, of a refusal to share a space with someone. The Civil Rights laws took that expression away and mandated that businesses serve all races, which itself is an expressive act. Right?

0:14:36.3 Rhiannon: Yes.

0:14:38.0 Peter: They're saying that you are compelled to act as if you support integration. Right?

0:14:43.5 Rhiannon: Right. Right.

0:14:43.7 Michael: Yes.

0:14:43.8 Peter: It is compelling expression from you. And so to say that there is an exception to anti-discrimination laws for expression, is just to say that discrimination is constitutionally protected.

0:14:58.1 Rhiannon: Right. Period.

0:14:58.8 Michael: Yeah. And this isn't like Peter putting like a retroactive gloss on the '50s and '60s and '70s. Sotomayor in Dissent cites like oral arguments, briefs, petitions for cert, where segregationists invoked their first amendment rights as justification to refuse to serve Black people. So a few examples are a case called Katzenbach v. McClung, which law students will know as like the Ollie's Barbecue case. A barbecue restaurant that didn't want to have integrated seatings. So they would sell to Black people on a limited menu from a takeout counter, but did not want to give table service to Black people. They justified this by saying it was their personal rights of persons in their personal convictions to deny services to Black people. That was in their brief.

0:15:56.6 Rhiannon: Yes.

0:15:57.2 Michael: In Newman v. Piggie Park Enterprises, some drive-in establishment asserted that requiring him to, "Contribute to racial integration in any way violated the first amendment by interfering with his religious liberty." And then there was Runyon v. McCrary in '76 about a private school that didn't wanna admit Black kids on the grounds that laws that would make them accept Black students violated their First Amendment rights of freedom of speech and association. Like this is nothing new.

0:16:35.1 Rhiannon: Right.

0:16:35.7 Michael: People have been seeking exceptions from anti-discrimination laws since we've had them, based on, amongst other things, the First Amendment, they've just always been turned away before.

0:16:49.4 Peter: Right.

0:16:49.6 Rhiannon: Right.

0:16:50.5 Peter: And I wanna be clear that I'm not saying that what will happen is that all discrimination will be legal now. What's actually going to happen, it seems pretty clear based on the opinion, is that the court is going to create a category of businesses or business practices that are expressive, and a category that are not. And if you're engaged in expressive business like wedding websites, you'll be able to reject customers because of their LGBT status, at least in some situations. So maybe more to the point here is that what we're actually talking about is not whether something is particularly expressive, that's just smokescreen bullshit. What we're actually talking about here is which viewpoints get constitutional protection. The entire purpose of the civil rights laws was to say that, as a country, we are categorically rejecting discrimination as a form of expression.

0:17:43.9 Peter: That's what all those cases, Michael, that you just referenced, stood for, in effect. It's not a practice that our law respects or validates.

0:17:52.2 Rhiannon: Exactly.

0:17:52.9 Peter: What the court is actually doing here is carving out LGBT people from that basic formulation.

0:18:00.1 Rhiannon: Yes.

0:18:00.4 Peter: Now, one point Gorsuch makes, and that I've seen others make, is like, well, what are the outer limits? Could the government pass a law requiring that a person who makes political ads, write ads that they disagree with? What Sotomayor points out in Dissent is that the law does not compel you to say anything at all, it just requires you to provide goods and services to everyone equally, without respect to those protected classes at least. So maybe you could conjure up some hypothetical tricky situations where this is like an actual issue, but my basic position is this, if your job is making political ads, and a politician who is, let's say, a Persian American approaches you and asks you to make a pro-choice campaign ad, I think you should be allowed to turn that down on the basis that you do not agree with the ads pro-choice message. But I do not think you should be allowed to turn that down on the basis that you think Persian Americans should not be able to hold public office.

0:19:03.7 Michael: Right.

0:19:03.7 Peter: Right?

0:19:04.0 Rhiannon: Exactly.

0:19:04.6 Peter: Another example would be refusing to make a commercial because the commercial endorses Black Lives Matter versus refusing to make a commercial because it includes an interracial couple, right?

0:19:14.5 Rhiannon: Right.

0:19:15.5 Peter: You could say that both of those involve artistic expression or political expression. But if the expression is so bound up in illegal discrimination that they are inextricable, then that conduct should generally not be protected. I think that's a simple enough formulation and the majority doesn't really deal with it. I think At the end of the day, you need to balance the value of the freedom of expression against the dangers of discrimination.

0:19:46.0 Rhiannon: That's right.

0:19:48.3 Peter: And the court tries to pretend that you don't have to do that. That there's a third way. There's certain expressive types of behaviour that are protected regardless. But I just think that's a cop out. It's a way to avoid the fundamental question and it's bullshit and it's designed from the ground up to give homophobic anti-LGBTQ political forces in this country, ammunition and leverage.

0:20:14.5 Michael: Yeah. And to that point, another little thing that, Sotomayor says in dissent, look, Lori Smith, if she wanted to make only websites, wedding websites that included Bible quotes saying that marriage is between a man and a woman, she could do that. All her templates or whatever could have pictures of Jesus and lots of Bible quotes that are explicitly disapproving of gay marriage. What she can't do though, is then decline to sell that wedding website to a gay couple because they are gay. That's the way this law operates. That's the way public accommodation laws have always operated. And the court is actually saying, "No, she can." She can say you can't have this website. The state isn't making her say anything. It's just saying whatever content she does offer to the public, she has to also offer to gay couples. And the court is saying no.

0:21:12.0 Rhiannon: And to your point, Peter, about the sort of weighing those two things against each other, weighing the value of freedom of expression against the value of protecting people from discrimination, the court isn't being real, Gorsuch's opinion isn't being real, that they're making that determination in favour of the expression of bigotry. Right. That is how they're weighing these two things against each other. That's where Gorsuch and the conservative majority come down. That is more important to them than protection for LGBT people against discrimination, right?

0:21:46.7 Michael: Right. They just don't wanna have to say that out loud.

0:21:49.2 Rhiannon: Exactly. And that makes me think about sort of unintended or frankly intended consequences of the decision. One is a very complicated new legal landscape in which courts are now going to be deciding what businesses provide expressive services. And what kind of goods and services a business provides that don't fall under anti-discrimination protections. This is not a clear cut, bright line rule that now states private entities can just apply and know what to do and how to behave. This opens the doors, this opens the floodgates to a bunch of new litigation fighting over these ticky tack individualised case by case facts basically. And then there's this other thing that this case promotes, I think which is an encouragement of sort of atomized individualised conflict. The business owner versus the potential customer or the potential client.

0:23:00.0 Rhiannon: What assumptions now are business owners empowered to make about who they think their clients or potential customers are. And what they think they might have to express or whatever the fuck on behalf of a new client or a customer. And how that really encourages all of the sudden a sort of lawlessness in that. A sort of chaos in that it's like this one-on-one conflict now. And you see it already in anti-trans rhetoric where people make assumptions about who they think they're dealing with and what bathroom they think somebody is in, whether that's correct or incorrect. Based on how somebody looks based on their own bullshit bigotry basically. And so this decision also promotes that kind of confusion, that kind of individualised case by case conflict that at the end of the day in a foundational basic way, empowers bigots to discriminate and create chaos. And create hate.

0:24:08.5 Michael: And it just makes me think also, I think that's by design.

0:24:12.2 Rhiannon: Yes.

0:24:12.9 Michael: You compare it to like when conservatives are talking about, for example, abortion and it's, well, we're returning this to the states, these moral issues should be decided by the people's elected representatives through democracy or whatever. But then when the people's elected representatives through democracy protect groups, the conservatives don't like, well, they can't stand for that.

0:24:39.0 Rhiannon: Yeah.

0:24:39.6 Michael: Right. They can't allow that.

0:24:40.5 Rhiannon: That's a constitutional violation.

0:24:42.7 Michael: Right. That is, we need to step in, we need to make sure everyone knows that lesbian, gay, bi, trans queer people are second class citizens. Not only are you not as protected by the constitution, the Constitution makes sure even your state laws can't protect you to the degree that they want to.

0:25:01.7 Rhiannon: Yeah.

0:25:04.9 Michael: And throws the world into this chaos that I think conservatives thrive in. That reminds me of what somebody said on a recent, if books could kill podcasts, [laughter] about conservatives thriving in scenarios where they're just really unpleasant in public to be around. Which can cow school boards or corporations like Target into a seeding to their will. This atomized society that Rhi is describing is one that conservatives are just absolutely thriving in.

0:25:38.5 Rhiannon: Yes.

0:25:39.2 Michael: Because they're willing to be huge and sometimes violent assholes, right?

0:25:42.8 Peter: Absolutely.

0:25:44.6 Michael: Yes.

0:25:45.7 Peter: And a lot of the modern reactionary movement is about securing their right to be Adversarial in public settings.

0:25:53.8 Rhiannon: Yeah yeah. I can be hateful in public. This is what this case says.

0:25:57.2 Peter: And I think that leads into, I know Michael, you're about to talk about the dissent, but that leads into a point that Sotomayor makes, which is that "Public accommodations laws aren't just about like securing goods and services for minorities." They're also about the maintenance of dignity, right? So the purpose of the laws isn't just to make wedding websites available, it's that the insult of being told that you are not welcome here has a negative impact on our social fabric. It has a negative impact on people's lives.

0:26:35.2 Rhiannon: Right.

0:26:35.2 Peter: And these laws recognize that and are geared toward addressing that. Right. Keep in mind a lot of the segregationist argument was about maintaining separate but equal. Right. The idea being like, well there are other hotels, there are other restaurants that do serve black people, so why can't they go there? And what legislators and courts said at the time, was that's not the whole problem. The problem isn't just the availability of services.

0:27:04.3 Rhiannon: Exactly.

0:27:04.9 Peter: It's that seeing a sign that says you are not welcome here is inherently adversarial, reduces their dignity. And is generally corrosive on our social fabric. And the court. And the court for the first time, I think in the modern era is saying that that is not just okay, but constitutionally protected.

0:27:29.4 Rhiannon: Right It's legally subordinating.

0:27:31.2 Michael: Right. So we've mentioned the dissent a few times now. There's one dissent, it's from Sotomayor joined by the two other liberals. It's really fucking good. I'm not gonna be able to do it justice. If you're a law student or an interested lawyer and you want to understand the history of public accommodation laws and the First amendment, this is a great place to start. It's absolutely worth a full read. So after she describes the purpose of public accommodation laws, which Peter just very eloquently did for us.

0:28:04.0 Rhiannon: Yeah.

0:28:04.3 Michael: She goes on to like recount the history of public accommodation laws, which is really a history of civil rights laws because so much of being a free and equal citizen means being able to participate equally in the economy, running your own business, eating where you please. Anyone who has ever been denied service at a hotel or a restaurant on account of their race, their color, their sexual identity can attest to this.

0:28:31.1 Michael: And so the idea behind public accommodation laws is this going back to literally at least 1701. So long as a business is open to the public, it has to be truly open to the public. Not we are only open to the white public or we are only open to the male public. Right. Businesses that aren't open to the public, like private clubs don't have to abide by this. Which is why there are still no Jews allowed clubs in northern Massachusetts for example.

0:29:05.2 Peter: Right.

0:29:05.6 Michael: And so, you know what Sotomayor says, which I think is right, is "The true power of this principle lies in its capacity to evolve as society comes to understand more forms of unjust discrimination and hence to include more persons as full and equal members of the public." And that is very much the history of public accommodation laws and civil rights laws in this country, starting with white male landowners and expanding to up until today was a very broad acceptance of women, LGBTQ people, racial and ethnic minorities and people with disabilities.

0:29:51.2 Rhiannon: Yeah.

0:29:51.4 Michael: So having gone through this history, Sotomayor turns to then the ugly history of discrimination that LGBT people have faced in our country's last 200 years since its start, since its birth, which is tough to read sometimes, but good for setting the stage for precisely why we need laws like the CADA and then details what we discussed earlier, which are all the times business owners and bigots have fought for exemptions from these laws based on the Fifth Amendment, based on the First Amendment, based on First Amendment, free speech principles based on First amendment religious principles based on the due process clause and on and on and on.

0:30:37.7 Rhiannon: Yeah.

0:30:38.1 Michael: Only after this thorough history does she turn to the case, putting it in its proper historical context, which is this is a civil rights backslide, a major one. This is setting us back to conceptually before the civil rights era, in essence by returning to at least some people being second class citizens. Right.

0:31:04.9 Rhiannon: Yeah.

0:31:05.0 Michael: And then she goes into the case law around the First Amendment, talks about a case we recently discussed United States v. O'Brien.

0:31:12.0 Peter: Yeah.

0:31:12.4 Michael: Because that is the case that should really govern here. That is the draft card burning case, which basically says, "When a law is not aimed at political expression or any expression and just incidentally burdens it like a public accommodation law, it gets like a pretty low level of scrutiny." And as long as the government has a good reason, like preventing discrimination it should survive, it's a great dissent and it has some very good language at the end that I want to read. So she says, "I fear that the symbolic damage of the court's opinion is done, but that does not mean that we are powerless in the face of the decision."

0:31:54.1 Michael: The meaning of our Constitution is found not in any law volume, but in the spirit of the people who live under it. I think that's right. It's a call to all of us. I mean, she aims it at business owners and because this is very much about businesses, but I think it's aimed at all of us to remember that we have to live our values. I think it's a good call to action. And then she ends with this. The unattractive lesson of the majority opinion is this. What's mine is mine, and what's yours is yours. The lesson of the history of the public accommodations laws is altogether different is that in a free and democratic society there can be no social castes, and for that to be true, it must be true in the public market.

0:32:39.8 Rhiannon: Exactly. Not much more to it than that. It is really a great dissent.

0:32:44.7 Michael: It is. It hits everything. It hits everything.

0:32:48.0 Rhiannon: Right, exactly. It's just saying what is happening, right? Like, it's just saying like these are the consequences of this majority opinion. This is what it's actually doing. This is why we have this body of laws up until this point, right?

0:33:01.6 Peter: I actually do wish that, you know, we started off talking about how the way that the majority conceptualizes expression is bullshit. I actually do sort of wish that you touched on that more, but that would sort of require her to go through. First Amendment jurisprudence that would add another 30 pages on to her opinion. So I think she sort of probably evaded it on purpose.

0:33:21.4 Michael: Yeah, I mean she dispenses with it I think pretty well by pointing out that like look, the law only applies to status based refusals to provide the full and equal enjoyment of whatever services petitioner choose to sell to the public. Status based is like the important thing and it goes back to like you can make a t-shirt that says love is love or you can make a t-shirt that says I hate gay people. It doesn't matter as long as you sell it to everyone. If you're selling it to some people, you have to sell it to everyone. Colorado's not gonna make you print a t-shirt that says love is love. And if Colorado's not necessarily gonna prevent you from printing a t-shirt that says I hate gay people, it's just going to prevent you from refusing to sell that t-shirt to gay people who want to wear it ironically at the club.

0:34:04.4 Peter: I think it's quite simple, and I think the argument that it's compelled speech is just Like very, very tenuous. You're not being made to say anything in particular at all. Especially in the case of this wedding website where she's just like, I was gonna write these couples a nice little blurb, but I don't wanna write that about gay people. It's like, Oh well, that's justice discrimination then I don't know what to tell you.

0:34:28.2 Rhiannon: Exactly. Exactly. You know that that brings me back to this whole fucking thing is fake. And we should talk a little bit more in detail about the fakeness of this lawsuit, which I think legally, you can say is a problem with standing. Does this woman have an actual claim that she has been legally harmed in this way and can bring this kind of lawsuit?

0:34:50.7 Peter: Is it ripe?

0:34:51.8 Rhiannon: Is it ripe for litigation? I think that answer is clearly no. But the Supreme Court decides otherwise. I think that this case is fake in two ways. One, people have started reporting on this just in the past couple of days. There was never a request. To make a website for a gay couple, even though at times during the course of the case making its way in the federal court system. Even though at times there was reference to an apparently fake request made by a gay couple to Lori Smith. At 3O3 Creative Melissa Gira Grant at the New Republic had some really great reporting that walks through what apparently happened here initially when this lawsuit was filed, the state of Colorado argued.

0:35:37.8 Rhiannon: Like there has been no request here. This is purely hypothetical harm. Months later, the ADF said in filings that Lori had received a request from a couple named Stuart and Mike. That request was asking Lori to not even create a wedding website. The request, apparently, was to work on designs for place names and invitations. And maybe they would "stretch to a wedding website in the future if Lori took on the project."

0:36:11.8 Rhiannon: That supposed request that ADF started to refer to later, after the initial case was filed. That initial request did include in the court filings a name an address, a phone number, and a website for Stuart, one of the men in this supposedly gay couple. So Melissa Gira Grant, the reporter at the New Republic, called this Stuart person his phone number is in the court filings and she talked to the guy. It turns out the identifying information is correct. There is a guy named Stuart. It is his phone number, this is his website, his address. All of that is correct. But he's a straight married man and he unequivocally denied ever requesting any design of anything from Lori Smith in Colorado. He lives in San Francisco. Why would he request a Colorado company design anything for him?

0:37:08.8 Peter: He was on a quest for the most talentless woman he could find.

0:37:13.2 Michael: Can some Jesus freak put together a Microsoft clip art website for me?

0:37:18.7 Peter: So what's the story of how they found this guy? Why was he being used?

0:37:22.9 Peter: They have no idea.

0:37:24.4 Peter: So they literally just fucking ran through the phone book and were like, let's grab this guy out of San Francisco, What are the chances That anyone ever tracks him down.

0:37:34.5 Rhiannon: Yes. And get this, this Stuart, he has a graphic design business himself. There's other problems with the request too, in that, like, the initial lawsuit was filed again without this request being part of this evidence, right? And it was supposedly once they started referring to this fake request months later, supposedly within 24 hours of filing the lawsuit. Laurie Smith had gotten this request for services for a gay couple, right? Just transparent bullshit.

0:38:08.2 Peter: Yeah. I love the idea that she filed the lawsuit being like, I don't wanna serve gay people, and then immediately a gay couple is like.

0:38:14.0 Rhiannon: Right.

0:38:14.6 Peter: Here's what we want.

0:38:15.4 Rhiannon: All of a sudden Yeah. A gay couple within a day, a gay couple is like, oh, we need your services. Right. It just such bullshit. So the reporting on this is important and people have rightfully like heard about this and been like, wait a minute, so the Supreme Court ruled on a case with literally false evidence, but we should clarify, that's not quite right. By the time the Supreme Court heard the case, the lawsuit did not include any claim that 303 Creative had received a request for services by a gay couple. Right?

0:38:44.8 Michael: Right.

0:38:45.3 Rhiannon: The entire lawsuit, the question that the Supreme Court is answering, it's about how Lori Smith can respond if she gets such a request in the future, right? So the Supreme Court's not dealing with a question of Lori's freedom of speech in relation to her request she'd already gotten. They are not claiming anymore that she received a request. It doesn't come up at all. It's not in the case.

0:39:08.4 Peter: It's not part of the court's reasoning. It's just relevant to the background that she is casually engaged in perjury at the Supreme Court.

0:39:20.3 Rhiannon: And how the alliance defending freedom is building their cases. Right.

0:39:24.0 Peter: Right.

0:39:24.4 Rhiannon: And deciding their litigation strategies.

0:39:26.6 Peter: Completely fraudulent pieces of shit.

0:39:28.6 Rhiannon: That's exactly right.

0:39:29.9 Michael: Yeah. Before we continue, I just wanna say like, yeah, I don't think this like changes the merits of this case regardless, but I think enterprising district attorney or Attorney General in Colorado. Should be going through every filing ADF has made in Colorado in the last five years checking it all out and then bringing charges against them and Lori Smith, they glide in official court documents under penalty of perjury. They perjured themselves like fuck them.

0:40:01.4 Rhiannon: Yeah, absolutely. And so all of that where the Supreme Court actually isn't taking up the issue of like, she's received this request and now what is she allowed to do, right. Under the First Amendment. That brings me to the second reason why this case is fucking fake [laughter] Even setting aside that the fake request that the ADF did include in the lawsuit at some point and that it wasn't taken up in the case, there is no harm here. Lori Smith's freedom of speech has not been infringed in any way. She has not received a request for a wedding website by a gay couple. She doesn't even fucking make wedding websites right now. This case is completely made up on the grounds that Lori Smith may at some point in the future receive a request for design services for a gay person.

0:40:51.6 Peter: Right.

0:40:52.2 Rhiannon: And that's not obscured or covered up by the Supreme Court in the opinion. Right. The opinion itself says things like, "To clarify her rights, Ms. Smith filed a lawsuit". When the fuck has a Supreme Court opinion taken up an issue to clarify somebody's hypothetical future rights. There's another quote. "Ms. Smith 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." It's all there like completely ignoring major standing problems. They're completely fine with this. Being Hypothetical, ruling on it anyway.

0:41:33.2 Peter: I'd also like to point out that there are websites that will make you a wedding website for free.

0:41:40.2 Rhiannon: Yeah.

0:41:40.7 Peter: That's what everyone uses.

0:41:42.2 Rhiannon: The Knot.

0:41:42.6 Peter: Right. Who the fuck is paying this lady? [laughter] The reason she had to bring this is because she could have waited years before a gay couple. Requested that she help with their website.

0:41:53.5 Rhiannon: Exactly.

0:41:54.1 Michael: No gay couple's gonna request her help anymore though. I'll tell you what, even if they don't know about this case, when you look on Yelp 185 reviews average one star.

0:42:04.7 Rhiannon: Perfect.

0:42:04.8 Michael: She's getting fucked. [laughter]

0:42:06.6 Rhiannon: I love that. And I think that's because you can not give zero stars on Yelp.

0:42:09.6 Michael: Yeah.

0:42:09.9 Rhiannon: One is the lowest you can do.

0:42:11.6 Rhiannon: That is right.

0:42:12.3 Peter: All right, one last thought here, which is I've seen many people ask, what's the deal with Neil Gorsuch? He's sort of an enigma. He wrote the majority opinion in Bostock County a few years ago, which held that anti-discrimination protections in Title VII applied to LGBT people. He also writes woke opinions about tribal rights, start with like fucking land acknowledgements and shit.

0:42:36.6 Rhiannon: Yeah.

0:42:37.2 Peter: So what's his deal? What is his deal here? And I think the simplest, probably most accurate way to look at it is that he is perfectly willing to contemplate minority rights in a vacuum.

0:42:51.1 Rhiannon: Yep.

0:42:51.3 Peter: But as soon as they come into material conflict with the rights of religious Christians in particular, the minority rights will be immediately subjugated. In his jurisprudence.

0:43:01.9 Rhiannon: Yeah. Again, it's that weighing those values against each other. Gorsuch comes out one way every time. Right.

0:43:07.7 Michael: Yeah.

0:43:07.9 Peter: Yeah. I've seen people say like, the way he writes about tribal rights, it's just so these beautiful sanguine statements. Right. But I actually think you can see that same rhetorical style in like his cases about striking down covid regulations. [laughter] Right. When he's talking about religious freedom, it's just that it doesn't hit Liberals in the brain the same way because they think it's dumb as shit. But I think he's trying for the same thing, you know? And I have like a half-baked theory on him that I think he just views himself as sort of like a rigid doctrinalist. And there are certain doctrines that he is very wedded to. One is Textualism, which explains why he went the way he did in Bostock, which was a very textualist opinion in favor of gay rights. Another is tribal rights and a third is the First Amendment rights to freedom of religion and speech.

0:44:06.2 Rhiannon: Yeah.

0:44:06.6 Peter: I think that there is a through line here and one day I will sit down microdose some shrooms and figure out Neil Gorsuch and then write about it. But that day is not today.

0:44:19.1 Rhiannon: Right. [laughter]

0:44:20.5 Michael: Yeah. That day is four days before we record our Patreon episode on Neil Gorsuch.

0:44:25.1 Peter: That's right. [laughter] That's right. [laughter]

0:44:27.1 Rhiannon: Yeah. Today it's Be Gay. Be cool. Fuck the police including Neil Gorsuch.

0:44:32.7 Michael: Yeah, that's right.

0:44:33.3 Peter: That's right. Anyway, happy Pride. [laughter] How do they do this on the last day of Pride Month.

0:44:44.7 Rhiannon: Last day.

0:44:45.2 Peter: You gotta wait. You gotta wait till July. God. All right folks, not a bad app for something we turned around in like two hours I think. I think this worked out. [laughter]

0:44:56.0 Michael: I think so. [laughter]

0:45:01.3 Peter: We were going to do Cheney V Winnebago County originally this week, but then the end of the term heated up, so next week we're gonna do the student loan case, Biden V Nebraska, and then maybe we'll do Cheney and then maybe an episode recapping our thoughts on the term. And then maybe we take a week off or something. We do the affirmative action case and some other cases from this term. I don't know. I don't know all that and more in the next couple months of 5-4 [laughter], follow us at 5-4 pod, subscribe to our patreon patreon.com/fivefourpod all spelled out for access to premium episodes, ad free episodes, special events, access to our Slack, all sorts of shit.

0:45:54.6 Michael: By the time this airs, we will have completed our first live stream on YouTube.

0:46:00.5 Peter: Yeah.

0:46:00.6 Michael: So check out the channel.

0:46:00.8 Peter: We're pivoting into video. Everyone's doing it.

0:46:04.6 Michael: Everybody knows that never goes badly.

0:46:06.1 Peter: No [laughter], we're going to be movie stars.

0:46:08.4 Rhiannon: I have no idea what we're talking [laughter]

0:46:12.2 Peter: All right folks. We'll see you next week.

0:46:15.8 Rhiannon: Bye.

0:46:16.2 Michael: Bye.

0:46:16.6 Michael: 5-4 is presented by Prologue Projects. Rachel Ward is our producer, Leon Nifak and Andrew Parsons provide editorial support. And our researcher is Jonathan De Bruin. Peter Murphy designed our website fivefourpod.com. Our artwork is by Teddy Blanks at Chips NY and our theme song is by Spatial Relations.

0:46:44.0 Rhiannon: Lori says that she is a Christian and she believes that marriage is a union between one man and one woman. Lori's a fucking loser. Okay.

0:46:54.4 Michael: Rachel cut out where she says the part about marriage between one man and one woman. So everybody just thinks Christians are losers. [laughter] We are coming out Anti-Christian podcast.

0:47:06.5 Peter: That's right.