On the face of it, 303 Creative v. Elenis, a case heard before the U.S. Supreme Court on Monday, sounded unimpressive.
A Christian web designer living near Denver was suing her state civil rights commission for the right to create wedding web sites without having to include creative content about same-sex weddings in the mix. She hadn’t been approached by any gay couples yet — but because she might be, she launched a pre-emptive lawsuit with the aid of the Alliance Defending Freedom, a law firm with an impressive track record of 11 wins at the Supreme Court level.
Yet, the more I read about the case and the issues it was trying to raise, the more intrigued I got. And the hearing on Monday didn’t disappoint. It lasted some two and one-half hours, which is long by Court standards. Covering hour-long hearings at the high court is difficult at best; I can only imagine how tough it was for reporters to sift through 150 minutes of speech — and all the tangents that were involved — to sum up how the hearing went.
Which is why I am merely critiquing the first drafts of what I hope will be more in-depth articles as time goes on. I’ll start with how CBS covered the story:
The Supreme Court's conservative bloc appeared sympathetic Monday to a Colorado graphic designer who argues a state law prohibiting discrimination on the basis of sexual orientation violates her free speech rights by forcing her to express a message that conflicts with her closely held religious beliefs.
During oral arguments in the case known as 303 Creative LLC v. Elenis, the court seemed to move closer to resolving a question it has left unanswered since 2018, when it narrowly ruled in favor of a Colorado baker who refused to make a cake for a same-sex wedding: whether states like Colorado can, in applying their anti-discrimination laws, compel an artist to express a message they disagree with.
An editorial comment: It's a minor annoyance that the plural “they” is used for a singular “artist.” Just write “he or she” for heaven’s sake.
One issue with reporting on this case is that it takes a ton of backstory to explain that this case isn’t just about a web designer, but also a cake designer-baker in a previous Supreme Court case.
While the court's conservative majority appeared prepared to find that Colorado cannot force web designer Lorie Smith to create websites for same-sex weddings, several recognized that there are differences between artists who are conveying a message and vendors selling goods and services in the marketplace.
"The case comes down to a fairly narrow question of, how do you characterize website designers? Are they more like the restaurants and the jewelers and the tailors, or are they more like the publishing houses and the other free speech analogues that are raised on the other side?" Justice Brett Kavanaugh asked.
Let me add here that oral arguments are very tough to cover. One is caught having to sum up in the opening paragraph whether the justices leaned left or right; who asked the tough questions and where the opposing justices appear to have been headed.
Still, there are standards, which is why I bring up Slate’s coverage because of the slapdown it got from the National Review. I don’t usually discuss Slate, as this niche-newsroom’s coverage is intentionally slanted. I hesitate to call it hard-news journalism (former religion writer Ruth Graham’s tenure there being a major exception).
Because Colorado law does not compel Smith to create a wedding website for a same-sex couple, or for anyone else. It only insists that once Smith has designed a wedding website, she must allow same-sex couples to purchase that product. In essence, Colorado says she must sell her website template to all customers, regardless of their identity. She need not create a new template or “speak” in support of any marriage.
At most, if she makes a wedding website for Henry and Fiona, she must sell the same template to Henry and Frank. As Colorado Solicitor General Eric Olson acknowledged, she could even make a template that (for some reason) condemned same-sex marriage. This speech is permitted. Colorado targets only the conduct of refusing to sell that product to gay people.
This reasoning is a bit of a reach. Designing a wedding site is hardly a “template.” In fact, the justices discussed this exact point — see the 19th and 20th paragraphs in this New York Times story. I am curious how the Slate writer missed this essential point.
Also, in the earlier Masterpiece Cakeshop case, baker Jack Phillips was willing to sell anything in his shop to a gay couple for use in their wedding reception. What he declined to do was design and create one of his special cakes, containing images for same-sex rites.
Back to the Slate analysis:
Colorado law does not compel Smith to create a wedding website for a same-sex couple, or for anyone else.
It was this point that the liberal justices tried to make on Monday when the Supreme Court heard arguments in this case. Under their questioning, the radical nature of ADF’s true goal came into focus. The conservative justices responded with a barrage of increasingly bizarre and aggressive questions designed to blur the lens once more. It felt obvious that Justice Samuel Alito and Neil Gorsuch were already looking beyond this case to looming conflicts on the horizon, aiming for a maximalist outcome that’ll empower lower courts to make civil rights laws optional for bigoted businesses.
I don’t have the room to include the rest of Slate’s piece, but the National Review analysis argued that this coverage so awful, it ran a piece by Ed Whelan condemning it. He writes:
I gave up long ago on the hope that Slate’s legal writers might acknowledge and correct their mistakes, much less become trustworthy commentators. But it’s still shocking to see how blatantly dishonest they can be.
Whelan repeats some back-and-forth between the justices, comparing it with the coverage by Dahlia Lithwick which he calls “artful deception” because of the way she portrayed Justice Samuel Alito as joking about black children in Ku Klux Klan outfits without telling readers that it was Justice Elena Kagan who first brought up the topic. Whelan concluded:
303 Creative is a serious case that the justices addressed seriously at oral argument. The only real mocking is by Lithwick, of Slate’s readers who have misplaced their trust in her.
The aforementioned New York Times story was well done, I thought. Here is a sample:
Despite all of its complications, Monday’s case, a sequel to one from 2018 involving a Colorado baker that failed to yield a definitive ruling, is expected to settle the question of whether businesses open to the public and engaged in expression can refuse to provide services to potential customers based on their religious or other convictions.
Mr. Olson, Colorado’s solicitor general, noted that Ms. Smith had not turned down any prospective gay customers or faced punishment and had instead sued pre-emptively.
Justice Kagan said that was a source of frustration.
“It really depends on the facts and on what exactly Ms. Smith is being asked or compelled to do, and that matters,” Justice Kagan said. “And we have a case without any of that in it.”
Lacking such facts, the justices and the lawyers arguing the case substituted hypothetical scenarios.
In 303Creative LLC v. Elenis (Aubrey Elenis heads the Colorado Civil Rights Commission), some legal experts hope that the justices will definitively rule on freedom of speech and compelled speech; that is, whether people can be forced to articulate messages they do not personally support. I did a walk-up for Newsweek on the issues involved which you can read here.
Here’s another crucial point: No reporter brought up the fact that this case cuts both ways — it can support an artist on the cultural left who, as a matter of conscience, does not want to be forced to articulate conservative views. If you want to read a fascinating amicus brief on the case by Dale Carpenter of Southern Methodist University and Eugene Volokh of the UCLA School of Law, seek it out online.
As Justice Gorsuch said, “Does every freelance writer have to write a press release for the Church Of Scientology?” Listen here to how Gorsuch shredded Eric R. Olson, Colorado’s solicitor general. You may remember that Gorsuch served on the 10th Circuit Court of Appeals for 11 years and knows Colorado law very well.
There are some jewels in the arguments during this hearing and I’m hoping, in time, reporters will be writing about them.
FIRST IMAGE: Photo provided by Alliance Defending Freedom.