Jul 6, 2023

The same-sex wedding website ruling.

Plus, I respond to reader criticism from Friday's piece.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 15 minutes.

🕸️
This is an abnormally long newsletter for an important reason: The case we're covering today is complex, and I have a strong opinion. Plus, I'm responding to some reader criticism from Friday's piece on Pedro Gonzalez.

Yes, I'm still reminding you...

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Quick hits.

  1. The Philadelphia mass shooting suspect is being charged with five counts of murder as well as other charges that include carrying a firearm without a valid permit. (The arrest)
  2. Former President Trump raised more than $35 million over the last three months, doubling his haul over the first quarter of 2023. (The funding)
  3. Officials investigating who brought cocaine into the White House said it was found near the West Wing entrance where visitors are asked to keep their phones in small cubicles. (The discovery)
  4. Meta (formerly Facebook) launched a new Twitter competitor called Threads yesterday. More than 10 million users joined in the first seven hours. (The launch)
  5. The Biden administration approved the largest-ever offshore wind power project, which will produce enough power for 500,000 homes and be built off the coast of New Jersey. (The project)

Today's topic.

303 Creative LLC v. Elenis. On Friday, the Supreme Court sided with a Colorado web designer who argued that the First Amendment entitles her to refuse to build wedding websites for same-sex couples. The 6-3 decision, with all Republican-appointed justices in the majority, was widely described as a win for religious conservatives and a defeat for LGTBQ rights.

Back up: Lorie Smith, a devout Christian, was challenging a Colorado law that prohibits most businesses from discriminating against LGBTQ customers, saying a requirement to create a website for a same-sex wedding would violate her right to freedom of speech. Specifically, Smith wants to post a message on her wedding website with a note that she will not create websites for same-sex marriages “or any other marriage that is not between one man and one woman." Rather than denying services to gay people, she argued she was exercising her right not to perform speech she disagreed with.

The law at the center of the case is Colorado's Anti Discrimination Act (CADA),  a kind of public accommodation law that requires businesses that serve the public to serve everyone. Particular to Smith’s case is that she was challenging the law preemptively, before building out or selling any custom wedding websites. In fact, some reporting has suggested that Smith invented a gay couple that sought her services shortly after filing her case in court, which her lawyers have denied.

During oral arguments, Colorado's Solicitor General Eric Olson said the state law targets discriminatory sales, not a speaker's message, arguing that a store can decide to sell only Jewish-themed items but it cannot refuse to sell those items to Muslim or Christian customers. He argued that if Smith’s religious beliefs prevent her from serving gay couples, that would open the door to genuine discrimination against LGBTQ customers.

Smith's lawyers countered that she would decide what to create based on the message, not who requests it. In other words, she will happily serve a gay couple, but has a right to refuse to create a wedding website promoting a marriage that offends her sincerely held religious beliefs.

During oral arguments, Justice Sonia Sotomayor made the case that ruling in Smith's favor would mark the first time the court has ever allowed a commercial business to refuse a customer based on their race, sex, religion, or sexual orientation. Chief Justice John Roberts countered the court has never approved efforts to compel speech that is contrary to a speaker's belief, which was ultimately the more convincing argument for the court's conservative majority.

The ruling: Writing for the majority, Justice Neil Gorsuch said that Colorado's anti-discrimination law cannot be enforced to require a business owner to express an idea they oppose. "The opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong," Gorsuch said in his opinion. Gorsuch indicated that the decision would apply to other business owners whose services involve speech, "such as artists, speechwriters, and movie directors.”

Writing the minority’s dissent, Justice Sonia Sotomayor said that there is no right afforded to businesses to refuse service to a disfavored group. The public accommodations law, Sotomayor said, bars business owners from discriminating based on sexual orientation and does not compel any speech. If Smith offers her services to the public, she can decide what messages to include or not include, but she cannot "offer wedding websites to the public yet refuse those same websites to gay and lesbian couples."

Reminder: Today's issue will focus on Friday's ruling. You can read our previous edition, where we broke down the oral arguments, here. As always, we'll be sharing views from the left and right, then my take.


What the left is saying.

  • Many on the left criticize the decision, saying it opens the door to all kinds of discrimination .
  • Some argue that the case is bizarre because it rests entirely on hypotheticals. 
  • Others suggest that the commercial nature of Smith's business is why she cannot discriminate in this instance.

In the Denver Post, Doug Friednash said this was a "sham" and "Gorsuch fell for it."

"Colorado's own Neil Gorsuch" has granted "a business open to the public — for the first time in our nation’s history — a constitutional license to discriminate and refuse to serve members of a protected class." The court also gave businesses future license to post notices “like, 'no wedding websites will be sold if they will be used for gay marriages.' ... "303 Creative was a made-up case," he wrote. "There was no live dispute and the case was a sham. Colorado Christian graphic web designer, Lorie Smith, has never made or sold a wedding website.

"Colorado never enforced its antidiscrimination laws against her," he said, adding, “this Court should have never handpicked this hypothetical as a pre-enforcement challenge, as such challenges are typically reserved for new laws and not ones that have been on the books for years." Now, a "website designer could refuse to create a wedding website for an interracial couple because they view it as a sin," or a "photographer could refuse to take pictures for women-owned businesses because they don’t believe women should work."

In The Washington Post, Amanda Katz said it is easy to see what this case will mean.

"Smith, by her own account, is not a designer of wedding websites. She is merely an aspiring wedding-website designer who reportedly dreamed from childhood of the heterosexual wedding websites she would someday create. While one can admire the particularity of this vision, her plight pales a bit beside the counterweight of gay couples trying to plan weddings without facing discrimination," Katz wrote. "On top of that, according to the mind-blowing reporting of the New Republic’s Melissa Gira Grant, a 2016 email included in the plaintiff’s filings from a gay man asking Smith for wedding design services is apparently fake.

"Then there is the argument itself. A wedding website is an example of 'expression,' sure — both sides agree on that," Katz said. "But Gorsuch, following a lower court, calls such a website 'pure speech,' as if no services were being provided and the primary point of the website was to express the designer’s views on matrimony." But as Sotomayor points out, “'the only thing the business may not do is deny whatever websites it offers on the basis of sexual orientation.'"

In Slate, Mark Joseph Stern said the Supreme Court was "blessing" LGBTQ+ discrimination.

The difference between previous cases cited by the court and Lorie Smith’s "is that this case involves a commercial enterprise, not private individuals or expressive associations," Stern wrote. "Thus, as Sotomayor wrote in dissent, Friday marks 'the first time in its history' that the court has granted 'a business open to the public a constitutional right to refuse to serve members of a protected class.' Never before has the court held that the government cannot compel commercial enterprises to serve all customers equally on constitutional grounds."

Gorsuch has "tried to draw a line between discrimination based on 'status' and discrimination based on 'message,' claiming that the First Amendment protects only the latter.” He concluded that Smith “was refusing to express a message about sexual orientation that she does not believe," Stern said. "That distinction favors Smith because she says she will serve gay clients, just not those who are getting married. Sotomayor replied that 'this logic would be amusing if it were not so embarrassing,' quipping that, on Gorsuch’s logic, a racist hotel could argue 'that Black people may still rent rooms for their white friends.'"


What the right is saying.

  • Many on the right celebrate the case as a win for the First Amendment and free speech.
  • Some argue that the government can never be allowed to compel the kind of speech Smith could have been forced to make.
  • Others suggest that this is not an attack on LGBT people, but a necessary outcome in a pluralistic society.

In The Denver Post, Jake Warner (the senior counsel who represented Smith), said this was a win for free speech.

"Like most artists, Lorie works with all people but can’t express all messages. For Colorado officials, that was a problem," Warner said. "Lorie learned that officials would misuse state law to force her to say things about marriage she doesn’t believe if she were to start making wedding websites with marriage stories that she reported and wrote. This is the norm in Colorado. For some years, state officials and others have been trying to punish cake artist Jack Phillips, owner of Masterpiece Cakeshop, for refusing to create art inconsistent with his beliefs.

"Lorie feared the same punishment, so she faced a grueling choice: curb her business, change her beliefs, or challenge an unjust law. She chose to protect free speech both for herself and those who disagree with her." Warner wrote. "The ruling protects all people — including those who disagree with Lorie’s views. As the opinion notes, the state of Colorado’s position 'would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty.' The ruling ensures that speakers—not the government—choose what they say."

National Review's editors called it a "huge win for the First Amendment."

"In the last decade, rather than be content to celebrate victories in the battle over same-sex marriage, activists decided to press their advantage, pursuing a society that allows no quarter to any individuals or businesses that hold different views," the editors wrote. Activists went from "libertarian arguments that the government shouldn’t prevent gay couples who loved each other from getting married" to arguing that "the government should compel business owners to provide services to gay weddings despite the owners’ deeply felt religious objections." But the court smashed “the idea that the government could compel speech in the name of civil rights."

Liberals have attempted to portray this as court-sanctioned discrimination, "but the decision does nothing of the sort. Smith is perfectly willing to offer her services to gay customers or even gay couples," the editors said. "There was not a shred of evidence in the record of the case to the contrary,” but because of Smith’s deeply held convictions,, “she does not want to offer her creative services to make custom designs for gay weddings.” Doing so would be “an act of expression against her will."

In The New York Post, Brad Polumbo said "as a gay man, I don't see the Supreme Court's ruling as infringing on my rights."

"This is exactly the outcome that all Americans, gay or straight, should want," Polumbo said. "I don’t personally agree with Smith’s values or beliefs, but nobody has the right to force others to adopt their ideas using the power of government. And I sure wouldn’t want that kind of imposition placed on me. Under the logic the court’s liberal justices embrace in their dissent, a gay business owner could be forced to design a website promoting anti-gay Bible verses.."

"You can’t have it both ways," Polumbo added. "If LGBT people don’t want to be forced to violate our beliefs, we can’t support forcing our religious neighbors to do so. And I, for one, would rather live in a world where all Americans have freedom of conscience than one where we’re constantly using the government to force each other into conformity." This ruling doesn’t undermine protections for LGBT Americans. "The court’s opinion carefully clarifies that its ruling only applies to 'expressive activity,' a narrow category of commerce that involves speech and ideas (like creating a website)."


My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

  • If everything about this case were exactly as stated, I would probably side with the majority.
  • However, there are no actual facts in this case, and the details are too critical to the outcome for that to be ignored.
  • Smith created the case in a way that would assure her victory with the court’s conservative majority.

When we covered oral arguments in this case, I asked if it was "possible to agree with everyone."

As I wrote then, the idea that the state can compel a person to express something counter to their beliefs is one of the most troubling brands of government intrusion I can imagine. That, in abstract, is a clear-cut violation of someone's first amendment rights.

But as I said last week on Twitter in response to the Supreme Court’s three most newsy recent rulings: I was very torn on the affirmative action case (we covered that yesterday), I thought the student debt ruling was correct (I'll explain why in tomorrow's newsletter), and I thought this ruling was a “farce." So how did I go from "I agree with everyone" to "this is a farce"?

The crux of this case is that Lorie Smith is claiming to not discriminate against gay couples, but is simply asserting her right to not create speech that would promote a same-sex wedding. She believes unique wedding websites represent a piece of expression similar to a song or painting, and while she'll gladly provide her services to a gay couple, she won't create something that implies support for their same-sex wedding.

From the opinion: "Ms. Smith stresses that she does not create expressions that defy any of her beliefs for any customer, whether that involves encouraging violence, demeaning another person, or promoting views inconsistent with her religious commitments."

This makes total sense. If the facts presented in this case existed as such, we’d get a fascinating piece of legal debate pitting First Amendment rights against public accommodation laws (the opinion itself is a very interesting and quick 70 pages of reading, if you’re curious). And, frankly, I'd be inclined to side with the majority — if there were such a case. 

But that's just it: There are no actual facts of the case. There is no live dispute, no actual customers, and not even a wedding website design company.

None of it exists.

This, of course, is not news to the justices or the lawyers involved. It is not totally unheard of for plaintiffs to create "test" cases to fight new laws, but it is unusual for hypothetical challenges to well established law like this to make it all the way to the Supreme Court.

Consider for a moment the other major Supreme Court rulings we've covered in Tangle recently: In the affirmative action ruling, there were real students who were actually claiming to be discriminated against by current Harvard and North Carolina admissions policies. In the independent state legislature ruling, there were real lawmakers actually trying to gerrymander state districts and keep state courts out of it. In the Clean Water Act ruling, there was a real couple actually trying to build a house near a protected waterway. In the Section 230 ruling, there were real family members of real victims of terrorism who actually believed YouTube and Google algorithms had caused the deaths of their family members.

In this case, we have a real person — Lorie Smith — who does actually create websites. But that’s it. Her wedding website business is theoretical, and it is very much in doubt whether the gay man who purportedly reached out to Smith even exists, given that the person listed in the filing appears to be a heterosexual man married to a woman. The form submitted to her website requesting services was also submitted the day after this case was filed in 2016 — which would be one hell of a coincidence. Of course, it's possible that this person submitted the form as some kind of prank and simply doesn't want to be identified now, but nobody bothered to investigate until a reporter at The New Republic found the person in question this month.

To be perfectly clear: The 10th Circuit (even in ruling against her) held that Smith had standing to sue. And clearly the Supreme Court believes she does, too. National Review has a three-part series making that case, as well. The basic argument is that, in Smith’s view, there was a "credible threat" that, if she were to launch a wedding website, the state would have compelled her to create speech she does not endorse. Reasonable people can (and do) disagree on that. I happen to be one of them.

My primary issue is not that it is outlandish to expect Smith would have eventually gotten a request from a same-sex couple to have her make their wedding website, but that the details in this case are critical, and without them, there is no case to be argued. For instance, Colorado has insisted that it would not compel Smith to actually design a wedding website, only to sell pre-existing templates to all customers. Even though Gorsuch essentially dismissed this claim, we'll never know what the state would actually do, because Smith never actually launched her company and we're unsure if any gay couple ever actually asked her to design a website for them.

I, for one, have gone to dozens and dozens of wedding websites, and I've never once viewed the content there as an expression of the website designer. I certainly never considered the designer in the same way I consider a painter while staring at a painting or a musician while listening to a song. When I wrote about this in December, I said a website designer is closer to a billboard owner with visual real estate to sell. 

So how "expressive" is her wedding website company? How custom are her services? What would a couple ask her to produce or put on their website? What variety of services would Smith be offering? What other website designers could couples use?

We don't have any answers to those questions, except the ones Smith and her lawyers invented to make their case as strong as possible.

There are times when these preemptive cases are necessary and appropriate. But this, in my opinion, was not one of them. And without actual facts to debate, the court was left engaging on the grounds Smith created. In a case this meaningful, that is a pill too large to swallow.


Your feedback, answered.

On Friday, I published a piece about a conservative writer whose anti-Semitic and racist texts were leaked to Breitbart. In my subscribers-only opinion piece, I suggested the writer should probably lose his job and take a timeout from public life. The piece generated dozens of comments, many of them critical of my position. I wanted to respond to those criticisms. Some samples:

  • "I'm not comfortable having a journalist request censorship."
  • “How does that make you any different from every other practitioner of cancel culture? With only a few limitations, freedom of speech allows everyone to say almost anything. Once you start restricting speech for being abhorrent (to you!), then you are on the slippery slope.”
  • “I think you're too close to this one, Isaac. When you say things like ‘lose his job,’ ‘be punished,’ and ‘ostracized and condemned,’ you've lost the battle.”

My response: I appreciate all my readers who criticized me by digging their heels in on an anti-censorship, free speech position. I think my long track record of writing about victimhood, imagined transgressions, censorship, misinformation, and conspiracy theories has made it quite clear I am opposed to nearly all forms of censorship, cancel culture, and mob mentality. Which is why I hope you will hear me when I say that I do not think my response on Friday falls into any of those categories.

Pedro Gonzalez is not a factory worker who had his racist text messages put on Twitter where a mob bombarded his boss to get him fired. He is not a CEO who had a video of himself as a teenager saying offensive things go viral. He is not a comedian who made an off-color joke that offended some people. 

He is a professional political writer who had a clearly fleshed-out vision of the world where Jews and minorities were subversive threats to America. He held those views as recently as last year. He is actively working to promote a presidential candidate. His job, as a writer, is to help make sense of the world to readers — to explain to his audience how the world is. What his text messages revealed is that he was cleverly trying to shoehorn those racist views into the public psyche. He openly explained how he was attempting to create animosity toward Jews and minorities through his writing and tweets, and how he was able to do so without getting caught or canceled.

To me, suggesting he lose his job over that is no more "cancel culture" or "censorship" than it would be to opine that a doctor who had secretly been texting friends about how he intentionally mistreated conservatives should lose his job. Again: Gonzalez's job is informing the public. If you're the editor at Chronicles, where Gonzalez works, and you find out a writer on your staff privately abhors Jews and minorities, and has been using your publication to intentionally inject his anti-Semitic and racist views into the public, is that not grounds for dismissal?

I get the knee-jerk reaction to protect anyone from losing their job for their politics. But in this case, I think Gonzalez’s worldview is about more than just politics, and is directly tied to his ability to do his job. As I said in my piece, I actually think it is worth extending him some grace. I do not support banishing Gonzalez from the public for good — nor do I think his future should be revoked from him. But I do think losing his job and taking a "timeout" from public commentary would serve him well, and would hold the line on a reasonable boundary for what we view as acceptable in mainstream political discourse. 

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.


Blindspot report.

Once a week, we present the Blindspot Report from our partners at Ground News, an app that tells you the bias of news coverage and what stories people on each side are missing.

The left missed a story about how New York City is now housing more asylum seekers than homeless people for the first time ever.

The right missed a story about U.S. maternal mortality more than doubling since 1999, with most deaths among black women.


Numbers.

  • 91%. The percentage of Americans who agree "protecting free speech is an important part of American democracy," according to a 2022 Knight Foundation poll.
  • 90%. The percentage of Americans who agree "people should be allowed to express unpopular opinions," according to a 2022 Knight Foundation poll.
  • 86%. The percentage of Americans who agree "free speech rights help marginalized groups be heard," according to a 2022 Knight Foundation poll.
  • 56%. The percentage of Americans who oppose allowing a small business owner in their state to refuse products or services to gay or lesbian people if providing them would violate their religious beliefs, according to a 2019 PRRI poll.
  • 37%. The percentage of Americans who support allowing a small business owner in their state to refuse products or services to gay or lesbian people if providing them would violate their religious beliefs, according to a 2019 PRRI poll.

The extras.

  • One year ago today we wrote about making an exception to the filibuster to pass an abortion bill.
  • The most clicked link in yesterday's newsletter was our video on Affirmative Action.
  • Good call: The large majority of Tangle readers agreed with the Supreme Court's decision on affirmative action. 65% said it was the right decision and will have mostly good consequences, while 14% said it was the right decision but will have mostly bad consequences. 8% said the decision was wrong and will have mostly bad consequences, while 3% said it was wrong but will have mostly good consequences. 10% were unsure or had no opinion.
  • Nothing to do with politics: Roller coaster riders were stuck on a roller coaster. Upside-down. For four hours.
  • Take the poll. What do you think of the court's decision? Let us know!

Have a nice day.

A growing initiative is building tiny home villages for veterans, and could be getting a big funding boost from Congress. Ida, a Navy veteran with PTSD, works in medicine and is among the 33,100 veterans who've struggled to find a safe, affordable home. But after receiving a grant from Operation Tiny Home — a non-profit dedicated to housing for "at risk" people — she was able to finance the construction of a house for her and her two dogs, according to the organization. Now, the House of Representatives is considering the HAVENS Act to help address the problem of homelessness among our nation's veterans. If it passes, it would allocate $20 million a year for five years for the development of five tiny home villages around the country. Zack Giffin, a spokesman for Operation Tiny Home, said the bill is "not just putting a Band-Aid on it, but actually demonstrating what a comprehensive solution can look like." Business Insider has the story


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Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.