Sunday, July 02, 2023

Peril Ahead



In the Colorado web designer case of 303 Creative v. Elenis, the State of Colorado neglected to perform its due diligence.. CNN reports

The Colorado web designer who wanted to refuse LGBTQ customers and just won her case at the Supreme Court had claimed in court filings that a man inquired about her services for his same-sex wedding.

But the man says he never reached out to Lorie Smith, the web designer who argued at the Supreme Court that she shouldn’t be forced to create same-sex wedding websites because of her religious objections. In fact, the man says he’s straight and married to a woman.

The man was identified as “Stewart” in court filings and as someone who requested graphic designs for invitations and other materials for a same-sex wedding with his fiancĂ©, Mike. CNN contacted Stewart through information in court filings. He asked for his last name, which is not in the filing, not to be used.

In an interview with CNN Friday, Stewart said that he “did not submit a request” to the company, 303 Creative, and is a “happily married man to a woman of 15 years.”

“I don’t know Mike,” Stewart said. “I’ve never asked anybody to design a website for me, so it’s all very strange. I certainly didn’t contact her, and whatever the information in that request is, is fake.”

Stewart, who previously worked for CNN, said that he is a web designer himself, and that “it would make zero sense to hire a web designer when I can do that for myself.”

Stewart said he was unaware of his information being a part of the court record until he was contacted by media outlet The New Republic on Wednesday.

“It is concerning that nobody connected with this case over the last six years has ever thought to call me, email me, text me to try and corroborate that communication in any way,” he said, adding: “I don’t necessarily think that would be a tipping point in this case at all, but at the very least … a case of this magnitude should be corroborated, should be fact checked along the way.”

Smith, who opposes same-sex marriage on religious grounds and runs a business designing websites, sued the state in 2016 because she said she would like to accept customers planning opposite-sex weddings but reject requests made by same-sex couples wanting the same service. She was never penalized for rejecting a same-sex couple — and it's unclear if she ever did — but sued on hypothetical grounds.



Clearly, Ms. Smith  did not have standing to sue under the three-part test adopted in 1992 by the Supremes themselves for plaintiffs in federal cases. NBC News points out

Smith, who opposes same-sex marriage on religious grounds and runs a business designing websites, sued the state in 2016 because she said she would like to accept customers planning opposite-sex weddings but reject requests made by same-sex couples wanting the same service. She was never penalized for rejecting a same-sex couple — and it's unclear if she ever did — but sued on hypothetical grounds.

The plaintiff thus probably should not have been granted certiorari. However, for what it's worth- and it's not much, in this case- the Court probably was correct on the merits of the case. As the plaintiff argued, she was being forced to express a message she disagrees with (or would have had there been a real case). And she expresses more creativity than would most other businesspersons, such as a coffee purveyor or a florist, who might be involved in a wedding.

Although the plaintiff's counsel, the Christian right law firm Alliance Defending Freedom, invoked a claim of denial of religious freedom, the Court's majority opinion leaned instead on freedom of speech.  Had the Court decided the case on the grounds of "religious liberty," the implications of the ruling may have been even greater and the consequences even more dire.

Instead, as Justice Gorsuch contended, "If there is any fixed star in our constitutional constellation, it is that the government may not interfere with an 'uninhibited marketplace of ideas" and the Constitution takes precedence over a state law. In light of the "marketplace of ideas," this Colorado news outlet explains,

the court said “creative” or "expressive" businesses do not have to speak a message or create content they don't believe in based on their religious beliefs.

That means a hotel or a bus company would still not be able to turn someone away because of who they are, but the state can’t force a business to create a message or content — like a wedding cake, a wedding website or even a floral arrangement — that may go against what they believe.

Nonetheless, there is no bright line separating "creative" or expressive" businesses from others. Judges  are similar to economists- put ten in a room,get eleven opinions. A court may consider a music band, catering service, or photographic work creative expression, or not. A law professor in one of my graduate school classes often would pose a question, then answer it himself: "it depends." As a lawyer, he chose not to admit that it depends not only upon the facts of the case, but upon the magistrate herself.

Additionally, a Court may find that a web designer or another professional may deny services to a couple on the basis of race or religion.  The Court would be more likely to uphold the right of the state to uphold its anti-discrimination statute when race or religion is the protected class at issue.

This is a dispute decided by a High Court which won't address matters which have harmed far more individuals and with more obvious consequences. The "entire case," as one journalist opposed to the ruling noted, "is built around the idea of gay people doing something that they have not yet done, nor ever will do." Gay couples would not seek a web designer who disapprove of their union. In the rare instances in which they do so and are turned away, they can find other another web designer. Little harm, little foul.

Nevertheless, this was not what was at stake. The Court majority wanted to give a thumbs-up to providers of other services to gay couples, to "expressive" businesses which want to deny assistance to other unions they disapprove of, or both. In any case, the ramifications of the Supreme Court in 303 Creative v. Elenis are almost unimaginable and .almost certainly deleterious.


 


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