S4, Ep. 08: Hypotheticals, reeducation, and a preemptive claim: SCOTUS hears 303 Creative v. Elenis

Amanda and Holly react to the oral arguments and discuss the difficulties ahead

Dec 8, 2022

Amanda and Holly review this week’s Supreme Court arguments in 303 Creative v. Elenis, a free speech challenge to a Colorado law that prohibits discrimination in the commercial marketplace. They look at how this case came to be, how it relates to 2018’s Masterpiece Cakeshop case, and the difficulty in deciding weighty matters of free speech and nondiscrimination for a wedding website design business that has not started that aspect of its business. Amanda and Holly play clips from the courtroom and share why, based on the questions and the tone, they think 303 Creative will win this case. But, the big question is how the company might win and how this case may affect debates about religious freedom and nondiscrimination laws.

SHOW NOTES:
Segment 1 (starting at 00:53 ): From Masterpiece Cakeshop to 303 Creative

Amanda and Holly previewed 303 Creative v. Elenis in episode 2 of season 4. 

Learn more about the 2018 Masterpiece Cakeshop case and read BJC’s brief at BJConline.org/Masterpiece

 

Segment 2 (starting at 10:44): Key takeaways from 2+ hours of oral arguments

We played three clips in this segment from oral arguments, which are available on the Supreme Court’s website at this link:

  • Justice Elena Kagan (starting at 2:04:54 into the oral arguments)
  • Justice Ketanji Brown Jackson (starting at 00:46:12 into the oral arguments)
  • Brian Fletcher, Deputy Solicitor General of the Department of Justice (starting at 01:56:00 into the oral arguments)

Amanda and Holly mentioned this op-ed by David Cole for The New York Times: The Supreme Court Is About to Ask the Wrong Question About the First Amendment

 

Segment 3 (starting at 26:20): A reeducation on some surprising questions 

Visit BJC’s Facebook page to see a video of Amanda outside the Supreme Court before the oral arguments began on Monday.

We played three clips in this segment from oral arguments, which are available on the Supreme Court’s website at this link:

  • Justice Ketanji Brown Jackson (starting at 00:21:54 into the oral arguments)
  • Brian Fletcher, Deputy Solicitor General of the Department of Justice (starting at 02:07:46 into the oral arguments)
  • Justice Ketanji Brown Jackson (starting at 02:14:57 into the oral arguments)

Respecting Religion is made possible by BJC’s generous donors. You can support these conversations with a gift to BJC.

 

Transcript: Season 4, Episode 8: Hypotheticals, reeducation, and a preemptive claim: SCOTUS hears 303 Creative v. Elenis (some parts of this transcript have been edited for clarity):

 

Segment 1: From Masterpiece Cakeshop to 303 Creative (starting at 00:53)

AMANDA: Welcome to Respecting Religion, a BJC podcast series where we look at religion, the law, and what’s at stake for faith freedom today. I’m Amanda Tyler, executive director of BJC.

HOLLY: And I’m general counsel Holly Hollman. Today we’re going to review the oral arguments in Supreme Court case 303 Creative v. Elenis, providing some analysis on what was said in the courtroom on Monday and how this case may affect the debates — the ongoing debates — about religious freedom and nondiscrimination laws.

We talked a bit about this case, previewing it in episode 2. That episode was entitled “Justice Alito and religion at the Supreme Court” as we were previewing the new Supreme Court term. The case is presented as a Free Speech challenge to a Colorado law that prohibits discrimination in the commercial marketplace, including prohibiting discrimination based on sexual orientation.

A little note is that the case involved other claims — Free Exercise and other kinds of religion claims — but the Court only took up the Free Speech question. That’s the only thing before the Court.

The case was brought by Lorie Smith, an individual business owner with a website design business called 303 Creative, so the case name is 303 Creative, et al. And Smith plans to expand her website design business to make wedding websites but does not want to serve same-sex couples seeking wedding websites, and she claimed that the state law compels her to speak in ways that violate her conscience by not allowing her to make wedding websites for heterosexual couples only. So that’s the basic factual background.

AMANDA: And it is important to note, as you do, Holly, that Ms. Smith has never actually designed these wedding websites. Her lawsuit is what’s called a pre-enforcement action, so she’s asking for an exemption or an accommodation from Colorado’s nondiscrimination law before she actually starts running her business in this way.

HOLLY: And if these facts sound familiar, they should at least be somewhat familiar, because the case arises out of the very same statute, and it presents a somewhat similar question as we heard in the Court’s Masterpiece Cakeshop v. Colorado Civil Rights Commission case back in 2018.

In that case, BJC filed an amicus brief, joining with other denominational groups, explaining the importance of nondiscrimination laws in protecting against religious discrimination, along with race and sex and sexual orientation discrimination — just providing some context that would fight against this narrative that these conflicts are all about religion on the one side and civil rights on the other.

So, we have a background in this area of law. We were involved in that case, which was presented on a Free Exercise basis. We did not file in this case, again because the Court has targeted only to Free Speech principles, but as you’ll see as we talk about this, there are a lot of similarities. Right, Amanda?

AMANDA: There are. And as listeners may recall, the Court didn’t actually decide the Free Exercise claim in Masterpiece. Instead, they found that Masterpiece [Cakeshop] should have won that case because of a process problem at the administrative level: that the people who were adjudicating the claim violated Free Exercise rights in the way that they heard the claim. So, the Court decided not to decide the Free Exercise claim in that case, and in some ways, they decided not to decide the Free Exercise claim in this case by taking it just on Free Speech grounds.

HOLLY: Yeah. So, Masterpiece won the case but did not win the right to have an exemption to nondiscrimination laws. The Court notably in that case affirmed several times in the opinion that members of the LGBTQ community deserve equal dignity and that states may choose to expressly protect the civil rights of LGBTQ persons alongside protections for people based on race, religion, and other categories.

AMANDA: So that brings us to this case, 303 Creative v. Elenis, and, you know, as noted, it’s the same law — the Colorado Anti-Discrimination Act — at issue, and so it’s actually the same circuit court that brought this case to the Court as well, the Tenth Circuit.

So the Tenth Circuit Court of Appeals, like the trial court, ruled in favor of the Colorado officials. The Court found that the custom website design of 303 Creative and Ms. Smith — although it would involve speech of both the customer and the creator, that Colorado nevertheless had an interest in protecting Coloradans from discrimination in the commercial marketplace.

And so 303 Creative, if it decides to create custom wedding websites for engaged couples, it must create them consistent with the law, and so ultimately the Tenth Circuit held that Colorado could not protect its citizens from marketplace discrimination and grant an exception for 303 Creative’s custom wedding websites.

HOLLY: This is a very specific case that addresses this larger ongoing issue that has ‑‑I don’t want to say, dominated, but it’s taken a disproportionate amount of air time in religious freedom law.

AMANDA: We know much more than we ever thought we would about the wedding business and all the vendors that go into getting ready for your nuptials.

HOLLY: And all the conflicts over what people think about marriage and how they think about it. And, you know, some listeners might be interested, if they’re just tuning in to this, to go back and see how BJC talks about marriage and how we know that part of our work is being very explicit, explaining the different ways that marriage operates, the fact that we have religious marriage and no laws that tell churches who to marry or how to conduct their sacred ceremonies. And then we have civil laws that recognize marriage as a civil union that come with particular rights, and that can be seen very separate from someone’s religious views.

This case is part of that overall discussion/debate that we’re having in society, and too often I believe that people know what they think about same-sex marriage, marriage equality, and if they’re for marriage equality, would say, “Oh, well, Colorado’s right and they should win,” or if their religious views don’t allow equality for same-sex marriages, they might feel a lot of sympathy for this business owner and say, “Well, she clearly should win.”

But we know that our religious liberty tradition really is about providing a basis for navigating these differences, and so the law doesn’t necessarily have to line up with one side or the other. What we’re trying to do is find our ways through this kind of thicket where we have these differences. And this case, I think, is one step along the way in that process.

AMANDA: And part of BJC’s contribution to this conversation is to provide some nuanced understanding about how nondiscrimination laws and Free Exercise claims come together in this space. So we understand the importance of nondiscrimination laws and think that while they should be enforced in almost all contexts, that there are some limits on what the government can do in order to protect Free Exercise.

And so, number one, we would not be in favor of forcing someone to participate in a religious ceremony, and we think it’s important to entertain claims that someone thought that they might be participating in a religious ceremony of marriage in a way that would not align with their religious views.

HOLLY: Sure. Yeah.

AMANDA: We also know that there is some area ‑‑ we’re now getting beyond just Free Exercise claims, but into Free Speech claims. There is some area of pure speech that is protected and distinct from action that is regularly regulated in the commercial marketplace. So the validity of civil rights laws depends on ensuring access, regardless of what someone thinks about people. So the laws provide equal access, and that protects the services given in the commercial marketplace.

HOLLY: Right. And I think those two points show that we see the difference in essential religious practice, individual practice, and practice of religious institutions, congregations, and rules that apply, you know, beyond that, that affect other people in a greater way, including in the commercial marketplace.

And it’s that second point that is kind of confusing in this case, because we know, as we discussed in the Masterpiece case, that civil rights laws can require businesses to serve people without regard to protected categories, but that doesn’t mean that the law tells those business owners things that they have to say, what they agree with and what they don’t.

And as this case came before the Supreme Court, distinct from Masterpiece, the media focused — and some of the amicus support for the business owner — really focused on, this is totally different; this is about Free Speech. This is a business that is speaking, and so if nondiscrimination laws apply to this business, you are making this business owner speak in a way that’s inconsistent with their religion.

But as we learned in oral arguments and got closer to this case, it’s not so clear that this was really an easy fact pattern to defend some area of Free Speech where the state would not be within its rights to apply nondiscrimination laws.

AMANDA: Yeah. I think because words are at issue on a website, some people thought, oh, sure, this is pure speech, as opposed to cake-baking. I think some people found it more difficult to find speech in the process of baking a cake.

HOLLY: Expression. Yes.

AMANDA: So they kind of passed over that question. But you’re right. In two-and-a-half hours of oral argument on Monday, the justices did not let that question go by.

 

Segment 2: Key takeaways from 2+ hours of oral arguments  (starting at 10:44)

AMANDA: We’re going to go through some of our key takeaways. I think the top-line message, though, is that after listening to two-and-a-half hours of oral argument, it sounds to us like 303 Creative is going to win this case, and they will probably win this case by a vote of 6 to 3.

And why do we say that? We say it based on both the tone and the substance of questioning at the oral argument itself. There seemed to be a pretty stark difference between the six conservative justices and the three more liberal justices in understanding the implications of this case. Now, that’s the top line.

But, beyond that is we don’t know how 303 Creative is going to win this case, because I do think a lot of issues were raised in the argument that the justices are going to have to work out in their writing of the opinions and in figuring out how to decide the case.

HOLLY: And that’s right. It really doesn’t help that we might all feel that in our gut there’s some area of Free Speech where nondiscrimination laws do not apply, and we also might feel in our gut there’s some area of valid market regulations that should apply across the board in the commercial sphere.

I mean, what matters is: Do the facts fit these principles in these areas of law? And then how do you draw these lines? What are the facts that are most important? What is the scope of the decision, and what implications will it have for future conflicts?

AMANDA: It’s funny, Holly, that you mention facts right off the top of here, because that was one of our takeaways, that it is hard to argue a case, let alone decide a case, without a lot of facts. And that is, again, because 303 Creative filed this lawsuit as a pre-enforcement claim. There is not actually a customer that has been turned away by Ms. Smith and her business, 303 Creative.

And I think that that was a strategic decision in part by 303 Creative’s lawyers at Alliance Defending Freedom and represented at the argument by Kristen Waggoner, because there is no other story on the other side. We just have as a sympathetic person in the case — Lorie Smith. We don’t know of a couple and their story who wants to have her website, nor by the way, do we know that any couple would want to hire her for the website, so that’s also a little bit strange.

HOLLY: So they can have a rally in front of the Supreme Court, as they did yesterday. I saw all the balloons, the shiny green and white balloons that say, “Create Freely.” Well, that sounds good. Yeah, let’s create freely. You know, it’s to paint a picture that her rights have been harmed, when it’s not at all clear that they have or that they would be. So there was not a factual record of her creating a service, turning down a customer. Instead, we have just a long list of stipulations about what the parties agreed to that did kind of shape this case.

But as you note, Amanda, the first point was that the Court had to recognize whether this case was ripe, whether it was appropriate for the Court to decide it, and counsel for 303 tried to put that out of the way right away. In response to Justice Thomas, she said that this was developed enough in line with the Court’s precedents.

AMANDA: But the implications concerned Justice Kagan almost towards the end of the argument. We’re going to play a short clip of Justice Kagan here and how she’s wrestling with the lack of facts in the case.

“JUSTICE KAGAN: (audio clip) So what you said is part of what frustrates me about this case, because, you know, I guess my view ‑‑ and I’m trying to think up hypotheticals for myself ‑‑ is a little bit, it depends. On the first set of hypotheticals I gave, I would come out one way, and one the second set of hypotheticals I gave ‑‑ I hope I’m not giving too much away ‑‑ I think it’s much tougher, and I might come out the other way. And it really depends on the facts and on what exactly Ms. Smith is being asked or compelled to do. And that matters, and we have a case without any of that in it. And what should I do with that?”

AMANDA: And remember that 303 Creative created this issue by bringing it as a pre-enforcement claim, but then their lawyer, Ms. Waggoner, is complaining about it at the oral argument, saying that her client’s speech has been chilled for six years while she’s waited for her claim to be heard by the Court.

HOLLY: Yeah. That was the argument, I think, in the beginning, to say that this was ripe for a hearing, is that she feels threatened by the law. I’m not sure that that rings true for most people, because also during those six years, we have heard quite a bit about how 303 Creative will not celebrate same-sex marriages. I mean, I don’t think there’s a shortage of opportunities of free speech in general for Ms. Smith or 303 Creative to talk about their views, their religious views on marriage, nor should there be.

We need to recognize that for the advocacy that it is, quite apart from the actual legal issues in the case and whether or not her Free Speech has been harmed by application of this law, particularly given that lack of development of the facts.

AMANDA: And, Holly, you mentioned in lieu of a factual record the parties have entered into a very long list of stipulation of facts. So in litigation, parties, in order to avoid a lot of depositions or other discovery that we call it, they can say, this is what we will agree to as a factual record. And so, part of that stipulation included language about the Colorado Anti-Discrimination Act and how it defines public accommodation and how that relates to 303 Creative. So, I’m just going to read very briefly what those stipulations are.

One is that the Colorado Anti-Discrimination Act “defines a ‘place of public accommodation’ to include ‘any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public, including but not limited to any business offering wholesale or retail sales to the public.'”

And then related to that, the parties also agreed that “as a Colorado place of business engaged in sales to the public and offering services to the public, 303 Creative is a place of public accommodation subject to the Colorado Anti-Discrimination Act.”

HOLLY: It’s that statutory language about what is a public accommodation that then triggers this important regulation not to discriminate based upon these protected categories in the commercial marketplace. And so we can see on the face there that this only applies to public accommodations, and not all businesses are public accommodations. And so that was an interesting part of the oral arguments, that that had been stipulated to.

And yet as 303 Creative argued the case, they tried to describe their services in ways that didn’t sound so much like a public accommodation, so maybe they would have had a better defense, as if they actually had been sanctioned by the state, by saying that they weren’t a public accommodation, but that, as you said, had been stipulated.

AMANDA: And Justice Ketanji Brown Jackson has a great, succinct explanation about the difference between freelance artists and public accommodations in this short clip that we will play now.

JUSTICE JACKSON: (audio clip) I thought that there really isn’t that clear a distinction in a situation like this, because your client is an artist-for-hire essentially. Yes, she does customize things. They’re not off the shelf, but she purports to be a public accommodation, providing customized things to anyone who pays her, except for people whose messages are those that she disagrees with.”

HOLLY: I think that’s helpful for people to see this distinction that must be made, the Free Speech interests when you are an artist, say, a songwriter or someone who is really clearly engaged in a creative endeavor with total control over your message versus a service that you are providing to the public generally.

And I think a really great treatment and explanation of that issue is in a New York Times op ed by David Cole, the national director of the ACLU. Of course, people think of the ACLU as being one of the lead advocates, both for LGBTQ rights but also Free Speech, and in this case, they filed on the side of Colorado.

AMANDA: Yes. He not only explains the difference between public accommodation laws and how artists are generally treated, but then he also talks about what’s expected of those businesses that do open themselves up to the public. The piece is called “The Supreme Court Is About to Ask the Wrong Question About the First Amendment.”  He published this ‑‑ a little prescient, right? He published this the morning of the oral argument, before we heard argument. We’ll link to it in show notes.

But this was the key sentence, I thought. He writes, “But the choice to benefit from the public marketplace comes with legal obligation to equally serve members of the public. And requiring businesses that offer expressive services in the public marketplace to follow the same rules as all other businesses does not violate the First Amendment.”

HOLLY: I think that piece really tries to untangle a point that can get very tangled, and that is whether or not there is this legitimate distinction that 303 wants to make between treating a wedding for a same-sex couple different from turning someone away based upon their status. I think there is some agreement on the two sides here that is a key factor, that what Colorado is getting at is the who, that you can’t turn away business services or goods based on the who, based on who’s asking for them. But a business does have some opportunity, of course, to decide what it does.

And so that’s something that we have seen in this ongoing debate that we’re having as a society about the implications of marriage equality and responsibilities to recognize marriage equality without having to participate in or condone or say things explicitly that are at odds with one’s important conscience rights.

AMANDA: Yeah. And this thorny, I think, somewhat complicated issue seemed to confound the justices and also divide them in many ways. I mean, we saw Justice Gorsuch pretty clearly saying this was all about the what, that she can define what she offers, even if what she offers is only websites for heterosexual couples, and others saying, well, how can you separate the who from that question.

And I thought that Brian Fletcher, who’s with the United States Solicitor General’s Office, provided some really helpful context here. The United States filed a brief in this case on the side of Colorado. We’ll play Mr. Fletcher’s clip here.

MR. FLETCHER: (audio clip) To start with 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 gays and lesbians because status and conduct is inextricably intertwined.”

HOLLY: And we understand that that point is one that, you know, people continue to struggle with, particularly those from religious traditions that draw a hard line against marriage equality, that they continue to want to see a distinction there, even though it was really hard to understand how that can be honored in law in the commercial marketplace when the business admitted that the exact same website that it would provide for a opposite-sex couple, it would not provide for a same-sex couple, when the only difference was a change in the date and a change in the names. So that example just showed how important and, I guess, how difficult this is, depending on which side you’re on, how difficult it is to convince the other side that your position is correct.

AMANDA: And I’m certainly sympathetic to those views, but candidly, I struggle with it, because after Obergefell and marriage equality, from a legal standpoint, marriage is marriage. There’s no substantive difference between same-sex marriage and heterosexual marriage. And so now ‑‑

HOLLY: Legally.

AMANDA: Legally, legally. Right. And so we can have religious views and we can respect religious views that look at those things differently and who do see a substantive difference and who, in the words of Ms. Waggoner on behalf of her client, who says that same-sex marriage is false. She is free to have that religious viewpoint, but the law doesn’t recognize that viewpoint, because under the law of civil marriage, we have marriage equality.

HOLLY: Of course, that doesn’t take away the fact that we have lots of specialized businesses and that you could provide some specialized services and not provide other services. It’s just that what you provide, you must provide to all customers without regard to protected categories. And that’s where we have these examples. Of course, you could have a Christmas business. You could have a business that sold only Christmas goods. But you couldn’t say that you would not sell those Christmas goods to someone because they are Jewish or Muslim or [another] religion or race.

AMANDA: And I think one of the hypotheticals at oral argument was in the context of designing wedding websites. you could have a wedding website business that had Judaica on the website itself, that had all Jewish symbols, but anyone could purchase that website. You couldn’t say, you know, who could buy your website services, but you could provide something that would cater mostly, you would think, to Jewish couples getting married.

 

Segment 3: A reeducation on some surprising questions (starting at 26:20)

HOLLY: As we noted at the outset, Free Speech was the focus of the argument, and what became really clear, if it was not clear to people already who kind of follow this case, is that this case was brought as an attempt, a legal attempt, a strategy, to oppose nondiscrimination laws that protect LGBTQ people in the commercial marketplace. We learned a lot in Masterpiece about the difficulty of finding a Free Exercise exemption, and we had lots of discussion of hypotheticals and no real way to cut that off.

And this Free Speech angle is another attempt to provide an exemption. That’s not to say that there’s not a legitimate Free Speech interest that should be litigated, that this Court should understand, but I think it’s just really important that we see that. And a lot of the oral argument then focused on the need to have some kind of limiting line that felt very similar to what we heard in the Masterpiece Cakeshop case.

AMANDA: And I think somewhat similar to Masterpiece Cakeshop case as well, Alliance Defending Freedom, which is the group that is representing clients in both cases, did not really help the Court very much in providing where that line should be. They argued, instead, for an incredibly broad rule, and in fact, in this case arguably even broader under Free Speech than under Free Exercise grounds, because you don’t have to have a religious reason to seek an exemption. It could be for any reason that you don’t want to express the message.

And, you know, I was outside the Court before argument on Monday, and something that I noticed was that I never heard the word “religion” at all. Instead, it was all about this is about artistic freedom; this is about creativity. And so it’s very difficult to find a limit there.

And I thought that Justice Jackson put forward a really compelling hypothetical, and instead of trying to reiterate it here for her, we are just going to let you listen in her words to the hypothetical that she posed to 303 Creative’s attorney.

JUSTICE JACKSON: (audio clip) Can you give me your thoughts on a photography business in a shopping mall during this holiday season that offers a product called Scenes with Santa, and this business wants to express its own view of nostalgia about Christmases past by reproducing classic 1940s and 1950s Santa scenes. They do it in sepia tone, and they are customizing each one. This is not off a rack. They’re really bringing the people in and having them interact with Santa, children, because they’re trying to capture the feelings of a certain era.

But precisely because they’re trying to capture the feelings of a certain era, their policy is that only white children can be photographed with Santa in this way, because that’s how they view the scenes with Santa that they’re trying to depict. Now, the business will gladly refer families of color to the Santa at the other end of the mall who’ll take anybody, but ‑‑ and they will photograph families of color in other scenes, other scenes, so they’re not discriminating against the families. What they’re saying is, Scenes With Santa is preserved for white families, and they want to have a sign next to the Santa that says, Only white children.

Why isn’t your argument that they should be able to do that? And maybe it is.”

AMANDA: And after posing that question, 303 Creative’s attorney, Ms. Waggoner, really had a hard time distinguishing that case. She tried to give a quick answer, but Justice Jackson stayed with her, and finally Ms. Waggoner admitted that that would be ‑‑ she called it an “edge” case, meaning that she could not definitely say that the nondiscrimination laws would apply there. She was admitting that that store might have the right to turn away Black children from the mall and from an ability to be photographed with Santa.

HOLLY: Similar to what she was asking for her client.

AMANDA: That’s right. That’s right. And because these questions about the impact on race and disability and religion came up, Justice Alito specifically seemed to take umbrage with the fact that one was equating views opposing same-sex marriage to views opposing interracial marriage, for instance.

HOLLY: Which is an unnecessary implication that someone would be equating these.

AMANDA: Right. It’s back into that sense of victimhood, I think, that we’ve heard from Justice Alito and others in other places. But to answer that concern, I thought Mr. Fletcher did a very good job of explaining why legally it was important to think about these as similar.

MR. FLETCHER: (audio clip) I guess I take Justice Alito’s point that I do not mean to equate those who have different views about marriage to racists, but the reason why I rely on those hypotheticals is because this Court’s First Amendment jurisprudence does not distinguish between views we find odious and those we respect. The same principles apply in both cases, and if the principles lead to unacceptable places when we consider them in light of odious views, then I think we have to reject those principles, even in a case where we sympathize with and respect the views.”

HOLLY: I think it was after that, Amanda, in the oral argument ‑‑ I know it was toward the end ‑‑ that I think that Justice Jackson was trying to provide some very productive and useful clarification to this issue and, you know, getting into that idea that Colorado assumes ‑‑ and I think most people on Colorado’s side assume, maybe even some, you know, who have a lot of sympathy for 303 assume ‑‑ and that is, just because you’re applying these nondiscrimination statutes to a business does not imply that the seller, the business owner, the business itself, is making a statement about their religious or other beliefs.

And so, I think that’s a really important idea that the Court is struggling with, that we’re trying to get clear about, you know, what is a valid commercial regulation, and how that can be distinct from a statement about one’s beliefs. Justice Jackson talked about this. She saw 303 Creative asking for an exemption based upon what she called an implicit statement, a statement that’s not made on the facts of the circumstances. You know, it’s not on the face of the product or service sold that the owner is saying something about the customer or what that customer is doing. let’s play that clip.

JUSTICE JACKSON: (audio clip) What would you think of a holding that says that the First Amendment protects this designer’s right to provide products that explicitly express her beliefs about marriage, so she absolutely has the right to say, one man, one woman in every website, and she has the right to refuse to say, gay marriage is great in any website.

But what she’s really asking for in this case, I think, is the right to say the same thing, Here’s the wedding; it’s at this place; et cetera, et cetera. But she’s afraid that if she says it for gay people, that that will be sort of like an implicit endorsement of their wedding, and so she wants to be able to protect against implicitly endorsing ‑‑ right? ‑‑ in a way that we’ve never really recognized before in the same way, when it isn’t really clear that that’s her message, when we don’t ‑‑ when an objective observer would know that she was really trying to do that. Am I right in trying to think about explicit versus implicit in this way?

MR. FLETCHER: (audio clip) I think that basically maps onto the test that we’re trying to give you, which is to say, if she’s discriminating based on status ‑‑ and that includes if she’s defining the message or the product based on the status, defining the what by the who ‑‑ that’s not okay. But other than that, she has the freedom to define her own product. And I think I’d agree with you entirely that the Court has never recognized that sort of implicit problem as being sufficient.”

HOLLY: And, Amanda, I think that brings us back to sort of where we began. While we all might recognize, I think, on both sides of this dispute that there are some businesses that would not be subject to public accommodation laws, you know, particularly artistic businesses, many people assumed that about this web designer, just because there were words involved.

And they kept saying, She’s creating words. But as we learned more about this business and the way these different businesses work, I mean, sometimes it’s not really clear that there is speech being created by the business owner. In fact, you know, the Court spent a lot of time talking about these kinds of wedding websites where there’s a template and you just plug in who’s the couple, what’s the date, how to get to our location, where to go to dinner, those kinds of things.

303 is making what I think is a difficult argument in saying that they will provide that service to some couples, but they won’t provide the exact same service to the other couples, and that’s because it is their message that the public would see, that they endorsed these weddings. And that was not at all clear on the facts of the case, and there are plenty of hypotheticals about how the business could be different in ways that had more of a creative impact, that had more indications that this is the story created by 303 Creative as opposed to this being the story of the couple that was getting married.

AMANDA: It’s a difficult argument to make, and yet we have this Court, and we have three justices in particular who came with some language that really reflected the culture wars and the larger debates around these issues that showed up in this argument in pretty unproductive ways.

We’ve already mentioned one, and that’s when Justice Alito asked, Is it fair to compare opposition to same-sex marriage as opposition to interracial marriage? And he invoked Justice Kennedy. And, of course, Justice Kennedy wrote the majority opinion in Obergefell and expressed a lot of respect for people who had the view that marriage is only between one man and one woman, and trying to somehow suggest that to compare opposition to interracial marriage was to cast opposition to same-sex marriage as a bigoted view, something that no one in the case was arguing until Justice Alito brought it up.

HOLLY: And then we had Justice Gorsuch, it felt like he purposefully confused the way we protect against religious and race and sex discrimination in the commercial marketplace with discrimination against this business owner. You know, these nondiscrimination laws are to ensure a nondiscriminatory marketplace. Owning a business comes with certain legal duties of the state.

It’s not that we don’t recognize that there are religious rights that you have as business owners, but it felt to me that that was a purposeful confusion, to really keep the focus on some harm to this business owner, totally ignoring Colorado’s valid purpose in creating public accommodation laws that would ensure that businesses are open to people without regard to religion, sex, sexual orientation.

And then, and then, Justice Gorsuch really showed some emotion in a way that was actually for me very surprising, in that he ‑‑ you know, we’ve talked earlier how 303 Creative was never threatened with any prosecution. They never did anything, and this idea of prosecution that kind of makes you think about some kind of criminal penalties, that doesn’t even apply here. If you violate one of these statutes, there’s going to be some kind of civil process.

And Justice Gorsuch said that this was going to subject her to some kind of reeducation program. And he’s referring to Masterpiece, but he used the term “reeducation program.”  Amanda, I mean, was he equating civic education about the laws of Colorado that require business owners to serve all customers equally — or at least not discriminate based upon protected categories — with some idea of totalitarian regimes that don’t allow dissenting thought and opinion?

AMANDA: Yeah. It was an ugly low point, I think, for the argument, and Eric Olson, who was arguing the case on behalf of Colorado in the oral argument, to his credit would not let Justice Gorsuch get away with it. He said, I strongly disagree with you, that this should be termed a re-education program. But Justice Gorsuch would not let that go.

HOLLY: And lastly, Justice Barrett just seemed a little bit off-base with her concerns, her worries. It sounded like she was worried about over-representation of same-sex couples, and she was using over-representation in ways that would be harmful to heterosexual couples. And that just kind of fits into this kind of persecution mindset.

And, you know, it’s one thing to have that concern, but it was so important to her that she was using examples that really did not fit, examples like The New York Times wedding pages that somehow newspapers would focus and decide to highlight only same-sex marriages as opposed to heterosexual marriages. I don’t think that’s very helpful, to bring in analogies that really don’t fit the context of the case.

You know, I enjoy, like many people do, reading New York Times wedding stories, and whether there’s an over-representation or not of certain kind of weddings is pretty irrelevant to this case, which is really about public accommodation services that Colorado is trying to ensure are open to the public.

AMANDA: Well, we will certainly be watching this case closely, and we will be back later in the season to give our reaction to the Court’s eventual ruling in this case.

That brings us to the close of this episode of Respecting Religion.

HOLLY: Thanks for joining us for today’s conversation. For details on what we discussed, including links to the articles we mentioned, check out our show notes.

AMANDA: If you enjoyed today’s conversation, share this program with others on social media and tag us. We’re on Twitter and Instagram and YouTube @BJContheHill, and — for now — you can follow me on Twitter @AmandaTylerBJC.

HOLLY: Plus you can email both of us by writing to [email protected] We love hearing from you.

AMANDA: And you can see a full list of shows, including transcripts, by visiting RespectingReligion.org.

HOLLY: Take a minute to find out more about BJC and how we’ve been working for faith freedom for all since 1936. Visit our website at BJConline.org for a look at what we do and some of our latest projects.

 AMANDA: Join us back here on Thursdays for new conversations Respecting Religion.