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Perspective: The most outlandish analogies in the 303 Creative case

From baristas refusing to serve Latter-day Saints coffee drinks to children in KKK outfits visiting mall Santas, hypotheticals were bizarre this week.

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Alex Cochran, Deseret News

Earlier this week, the Supreme Court heard the term’s big First Amendment case: 303 Creative v. Elenis, involving a graphic designer who will work for gay people but not create websites for same-sex weddings. The argument went about as you’d expect, with plenty of culture-war allusions that didn’t change anybody’s mind and quickly became fodder for internet jokes.

If all you care about is the result, let me put the bottom line up front: Lorie Smith, the owner of the 303 Creative shop in Littleton, Colorado, will win 6-3. A clear majority of justices were uncomfortable with forcing someone to create expression they disagreed with. And unlike the 2018 case of Jack Phillips, the baker at Masterpiece Cakeshop, everyone agrees that Smith’s business is expressive.

What will happen when Smith wins? In an MSNBC interview after the argument, Colorado Attorney General Phil Weiser envisioned a world where baristas refuse serving Latter-day Saints “specialized lattes” if they don’t embrace the principles of the faith. (It’s not clear if he knows members of The Church of Jesus Christ of Latter-day Saints typically don’t drink coffee, let alone “specialized lattes.”)

That was only one of the week’s most amusing and outlandish hypotheticals, or “hypos” — stylized fact patterns judges use to test the full implications of a proposed rule — many of which came from the justices themselves.

The first came when Justice Elena Kagan noted that the wedding website of one of her engaged clerks had the tagline “Made with Love by Amber.”

Could Amber (not the designer’s real name) one day wake up and decide not to provide her services to gay couples? The answer was that if it was a “plug and play” situation, with the sale of pre-designed templates, she couldn’t refuse service, but if she was asked to create new expression, then no — kind of like the off-the-shelf versus custom-cake hypothetical from Masterpiece Cakeshop v. Colorado Civil Rights Commission.

Later on, Smith’s lawyer Kristen Waggoner explained that “Even the same words have different meaning. ‘God bless this marriage’ means something different. ‘My body, my choice’ means something different to an anti-vaxxer or a pro-abortion advocate.”

From there, the hypos became more fanciful and less realistic. Justice Sonia Sotomayor asked about opposition to interracial marriage and marriage between disabled people (because of the chance of “propagating a disability”). Waggoner, replied, correctly, that “it’s highly unlikely that anyone would be serving black Americans in other capacities but only refusing to do so in an interracial marriage context.”

Justice Amy Comey Barrett asked about a couple who said that being cisgender and heterosexual was irrelevant to their conception of marriage, and further that they had met during late nights at the office and divorced their respective spouses. According to Waggoner, Smith wouldn’t create a website for that wedding because she wouldn’t want to express that message.

At that point Justice Ketanji Brown Jackson, who’s in her first term on the court, painted the scene that will most be remembered about this argument. She called it “Scenes with Santa” — a mall photographer who reproduced classic mid-century tableaus but only included white people in the Rockwellian nostalgia.

She then offered an hypothetical regarding “Grandma Helen’s Protestant Provisions” and a restauranteur who made special recipes only for those who shared her faith. Waggoner replied that this was akin to a caterer who couldn’t decline to service a same-sex wedding on free-speech grounds. Jackson then returned to the Santa photographer, referring to the sale of an “It’s a Wonderful Life” package that wouldn’t be “authentic” without an-all-white cast.

From there, Waggoner began discussing “Hamilton” (where members of racial minority groups play the Founding Fathers) but was cut off. Roger Severino, who used to direct the office of civil rights at the Department of Health and Human Services, tweeted that to suggest that the classic film “can be used as some sort of white supremacy allegory” is “something only someone steeped in critical race theory would come up with.”

When it was time for Colorado’s solicitor general, Eric Olson, to take his analogical-reasoning test, Chief Justice John Roberts asked about an actual case, FAIR v. Rumsfeld. There, the justices ruled that the federal government could constitutionally withhold funding from universities if they refuse to give military recruiters access to resources. (Some schools objected to the military’s “don’t ask, don’t tell” policy.) Roberts explained that there were no valid speech claims because the schools were just providing rooms and “empty rooms don’t speak.”

Justice Samuel Alito then invoked a colorful line of hypos. First, from a brief by the Jewish Coalition for Religious Liberty: “Another Jewish man and a Christian woman who are engaged to be married ask a Jewish website designer to build a website to celebrate (the wedding). Big problem. ‘Many Jews consider intermarriage an existential threat to the future of Judaism.’ Does that website have to accept the second couple?” 

Then came perhaps the funniest discussion of the argument:

ALITO: OK. An unmarried Jewish person asks a Jewish photographer to take a photograph for his JDate dating profile. It’s a dating service, I gather, for Jewish people.

KAGAN: It is. (Laughter.)

ALITO: All right. Maybe Justice Kagan will also be familiar with the next website I’m going to mention. So, next, a Jewish person asks a Jewish photographer to take a photograph for his AshleyMadison.com dating profile. (Laughter.)

ALITO: I’m not suggesting that. I mean, she knows a lot of things. I’m not suggesting — OK. Does he have to do it?

Olson stammered but ultimately returned to the point that “if the photographer makes that service available to — to others, taking pictures, you know, for use on websites, then probably yes.” 

But Alito wasn’t done. He concluded his series by asking about “a black Santa at the other end of the mall” being asked to take a picture with “a child dressed up in a Ku Klux Klan outfit.”

Then Barrett engaged in some hypos about whether The New York Times could choose to run only same-sex wedding announcements during Pride Month — or what about a for-profit gay-rights publication that only runs same-sex wedding announcements? Olson called the latter an “unusual case,” but aren’t they all?

There were some other “unusual” hypos teased out throughout the course of the argument until ultimately Kagan asked the deputy U.S. solicitor general, Brian Fletcher — who was supporting Colorado — for the two best fact patterns that support his argument. Fletcher described an actual case, Runyon v. McCrary (1976), where the Supreme Court ruled that private schools were welcome to teach segregation but not practice it. 

That non-hypo gets us exactly to where we were at the start of the argument: That this is a disagreement about whether the case is about speech or conduct. As Kagan put it, “the florist, the baker and the guy who provides the chairs are also providing the services in a wedding that they don’t like. So why are they any different?” Waggoner conceded that “The person providing the chairs isn’t providing speech, but when you’re engaging in symbolic speech, whether that be through the creation of a custom wedding cake or a custom wedding website, you are creating speech.”

Or, as professors Dale Carpenter, Eugene Volokh and I argued — in a brief Justice Brett Kavanaugh referenced — “the First Amendment shields refusals to speak, but does not extend to refusals to do things that are not a form of speech.” State laws prohibiting discrimination in public accommodations simply can’t compel speech and I, for one, have a hard time seeing a website as anything other than speech, regardless of any crazy hypos.

Ilya Shapiro is the director of constitutional studies at the Manhattan Institute and author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court. He also writes the Shapiro’s Gavel Substack newsletter.