Some Culture War Moments in the 303 Creative Oral Argument

 by Michael C. Dorf

Here on the blog last week, both Professor Segall (on Friday) and I (on Thursday) acknowledged that 303 Creative v. Ellenis--which pits a web designer's free speech against same-sex couples' statutory right against discrimination--presents some difficult questions. Yesterday's two hours and twenty minutes of oral argument in the case did little to make it much easier, even though some Justices (especially Alito, Gorsuch, and Kavanaugh) characterized the disagreement between the sides as fairly narrow. In a Verdict column tomorrow, I'll explore the costs and benefits of various ways in which the Court can try to decide the case without either gutting anti-discrimination law or effectively eliminating a right of expressive businesses to refuse to create works they deem odious.

In today's essay, I'll address a few side points raised during the argument, beginning with the not-so-subtle signaling by the web designer's lawyer--Kristen Waggoner, the CEO of Alliance Defending Freedom, an organization that litigates on behalf of conservative churches and religious organizations--where she stands in the culture wars.

I counted three culture war dog-whistles by Ms. Waggoner. First, early in the argument, she used "Democrat" as an adjective (referring to a hypothetical "Democrat publicist"), which is a tip-off that Ms. Waggoner generally moves in right-wing circles, where what began as a weird slur has become standard parlance. She seems to have remembered her coaching, though, because later she used the correct "Democratic" (referring to a "Democratic inauguration").

At another point, Ms. Waggoner referred to someone who might say "my body, my choice" to support abortion rights as "pro-abortion," which is how people (almost invariably on the right and especially the religious right) who want abortions to be illegal characterize the views of people (mostly in the political center and left) who don't want the government to deprive individuals of the choice whether to have an abortion.

And perhaps most shockingly, in her rebuttal, Ms. Waggoner seemed to be referring to the decision of the Colorado legislature and other state legislatures around the country to forbid public accommodations from discriminating on the basis of sexual orientation as enacting "cultural whims."

For the most part, the other lawyers and the Justices avoided characterizing the case through a culture-war frame, except for . . . wait for it . . . wait for it . . . duh, Justice Alito. Still smarting from the fact that after Obergefell v. Hodges, he isn't allowed to say he's against same-sex marriage without being branded a bigot--which we know from the fact that he repeatedly and publicly says that he's not allowed to say that--he disingenuously invoked a throwaway line from Justice Kennedy's opinion in that case (which he himself belittled in that very case).

Here's the line: "Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here."

In his Obergefell dissent, Justice Alito whined that that disclaimer was hardly satisfactory, predicting that he and his buddies "who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots . . . ." After all, he noted earlier in the same dissent, the Obergefell majority opinion "compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent."

But now, lo and behold, Justice Alito says that the disclaimer that was inadequate to protect him against charges of bigotry in Obergefell provides a rock-solid basis for ensuring that dissenters--by which, let us be clear, he means people who read Scripture as not only forbidding them from getting married to a person of the same sex but forbidding them from in any way facilitating the same-sex weddings of others--have a get-out-of-public-accommodations-laws-free card. Tossing the softest of softballs for Ms. Waggoner to swing at, Justice Alito asked: "In Obergefell, did the Court say that religious objections to same-sex marriage are the same thing as religious or other objections to people of color?" Ms. Waggoner dutifully gave the expected answer: Heavens, no. The Court said that religious opposition to same-sex marriage is decent and honorable.

It is not difficult to see where this will lead. Justice Alito will say (as he has suggested before) that the petitioner wins but that race discrimination is different, and he'll brazenly cite Obergefell as authority for that proposition. To be sure, he will also say that if there are implications for race, they're all good. Presumably that's what he was up to when he tried to parry Justice Jackson's hypothetical example of a whites-only Santa with a Black Santa who ought to have a right to refuse to take photos with children in Klan garb. But I'll have more to say about what should distinguish those examples in my column. 

For now, I'll conclude with two thoughts. First, although the Court denied cert on the religion claims, religion was everywhere in yesterday's argument. As a doctrinal matter, that's a bit of a mixed bag. In principle, religious claims are a smaller universe than speech claims, because anyone can simply say they don't want to express some idea and they've made a prima facie speech claim. But religion claims are also broader, because whereas the conservative Justices seemed prepared to say that there are some occupations--florists, caterers, chauffeurs--whose work is not inherently expressive and thus doesn't give rise to a speech claim against public accommodations laws, if the issue is avoiding complicity in a religiously condemned act, then the florists, caterers, chauffeurs, chimney-sweeps, and everybody else can state a claim. It hardly matters though. Whether officially a speech or religion claim, the case coded as religious, which will suffice for this theocratic Court.

Second, I would emphasize a point Professor Segall made on Friday: despite this Court's frequent professions of originalism, original meaning played only a tiny role in the argument. At one point, Justice Thomas asked whether the public accommodations laws of centuries past applied "to speech . . . or expressive conduct." Eric Olson, the Colorado SG, said there were no cases one way or the other, and that was pretty much that. Of course, if Justice Thomas were being true to original public meaning originalism rather than original intentions and expectations originalism, he would have asked whether "freedom of speech" in 1791 and/or "privileges or immunities" or possibly "due process" in 1868 would have been generally understood to include a right of website designers to an exception from a public accommodations law forbidding sexual orientation discrimination--which is an absurdly anachronistic and inherently unanswerable question.