The U.S. Supreme Court heard another culture war case Monday, one that pits marriage equality against bigotry, and they’re calling it a “free speech” case. The particulars of this case are entirely hypothetical—the business at the heart of the case doesn’t even exist yet; it’s purely aspirational. The results of this case could be concretely catastrophic. The case is also one in which there should be a big flashing neon “conflict of interest” sign over Amy Coney Barrett. She, of course, has not recused.
The case is 303 Creative LLC v. Elenis in which a web designer, Lorie Smith, argues that as a Christian, her free speech rights will be denied if the business she has dreamed about creating since she was a child but which does not exist is forced to serve LGBTQ people. Her nonexistent wedding website would be burdened under the state of Colorado’s public accommodations law that requires LGBTQ people to not be discriminated against by bigots like her.
This is chapter two in the anti-marriage equality crusade of the far-right, specifically the Alliance Defending Freedom (ADF). In the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission case four years ago, they tried to get the court to say anti-gay bigotry, cloaked in the guise of religious freedom, was protected free speech. In that case, a cake baker didn’t want to make wedding cakes for LGBTQ couples. The court ruled for the baker, but didn’t go so far as to say a business owner’s religious beliefs or free speech rights can justify refusing some services to gay people. The ADF, a ”Christian legal army,” was the force behind the cake case, and they are the force behind the website case, which is intended to force that free speech decision. They have also had a paid professional relationship with Barrett.
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ADF is a legal advocacy and training group focused on “religious liberty” protections and fighting LGBTQ equality. It is considered a hate group by the Southern Poverty Law Center. Between 2011 and 2016, Barrett was paid five times by the ADF for speaking to law students in the ADF’s Blackstone Legal Fellowship, a summer program teaching a “distinctly Christian worldview in every area of law.” Barrett was lecturing the students, presumably, on “how God can use them as judges, law professors and practicing attorneys to help keep the door open for the spread of the Gospel in America.”
She got paid to do that, and now she is getting paid by all of us to decide whether or not to force that vision—and that bigotry—on the nation.
Early on in the hearing Monday, Barrett appeared to be trying to run interference on behalf of the ADF’s general counsel (and President and CEO), Kristen Waggoner. Web designer Smith, she said, “believes opposite sex marriage honors Scripture and same-sex marriage contradicts it.” Justice Sonia Sotomayor went to the crux of the threat this case poses: “What if a wedding website maker doesn’t believe in interracial marriage or letting disabled people get married?”
The only answer Waggoner could provide was “it’s highly unlikely.” Barrett jumped in to ask a softball question: Would Smith also refuse to make a website for a straight couple who had a specific pro-marriage equality message, or a straight couple who talked about how they got together while they were still married to other people? Waggoner said of course she wouldn’t create that website, so Barrett could conclude for her, “So it’s about the message and not about the sexuality of the couple that matters?” See? It’s all about icky gay people and no one else.
Sotomayor didn’t let it go, however, asking the hypothetical of whether a web designer could turn away two disabled people getting married. Waggoner said yes, they could. Sotomayor again on the threat in this case: “So there is no line on race, there is no line on disability, ethnicity, none of the protected categories.”
Justice Ketanji Brown Jackson continued along this line of argument, asking whether a photographer taking photos of children with Santa could refuse to take photos of Black kids with Santa. Waggoner hedged. “They are difficult lines to draw. That may be an edge case.”
Jackson pushed it again with another hypothetical situation of a photographer recreating It’s a Wonderful Life scenes that only allowed white families. Would that be legal, she asked Waggoner, who again refused or failed to give a clear answer.
In his presentation, Eric R. Olson, the solicitor general for Colorado, stressed that implication of the case. He compared it to a Christmas store refusing to sell merchandise to Jewish customers, saying that the plaintiffs were attempting to legalize discrimination by commercial businesses to refuse customers based on their views on sexual orientation, race, disability, or religion.
The problem of wider bigotry as free speech being allowed if the court decides for Smith was the primary message from Colorado’s Attorney General Philip Weiser, who wrote in a brief for the justices: “A business could, based on its claimed beliefs, refuse to bake for Catholic baptisms because it is pro-choice, photograph reunions of Black families because it opposes racial equality or create floral arrangements for events celebrating women’s business achievements because it believes only men should work outside the home.”
In another brief, Weiser reminded the justices that this was just a hypothetical case anyway—no one has been harmed because no gay couple has come to Smith to ask for their wedding website because that’s not even a business she is in yet. “The record contains no evidence,” he wrote, “that anyone has asked the company to create a website for a same-sex wedding; that Colorado has threatened enforcement; or that any future wedding website would convey a message that would be attributed to the company.”
If you need any indication as to where the majority is leaning in this one, look no further than Clarence Thomas, who was first out of the gate with a statement allowing Waggoner to rebut the argument that the case isn’t “ripe” yet—that she has not been forced to either accept or turn away anyone’s business. It’s a “pre-enforcement” issue, Waggoner said. Her client really, really wants to get into the business but is reluctant to do so because icky gay people. (Who would probably not want her crummy website in the first place, but that’s not the issue.) Legalized discrimination making a comeback in the 21st century is the issue.
Another broad issue here is the legitimacy of the court. This case should not be before them because no, it is not ripe. There is no business in question, no actual customers, no websites. It’s not about anyone being harmed, it’s a preemptive attack on the rights of LGBTQ people and other protected classes, one that the court should not have accepted. But they are going to decide it, and Barrett—who should have been forced to recuse—will be in on that decision.