Courthouse Steps Decision: 303 Creative v. Elenis

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Chayila Kleist:  Hello and welcome to this Federalist Society webinar call. Today, July 7, 2023, we host a post decision Courthouse Steps on 303 Creative v. Elenis, which was decided last week by the Court. My name is Chayila Kleist, and I’m an assistant director of practice groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s program as The Federalist Society takes no position on particular legal or public policy issues. In the interest of time, I’ll keep my introduction of our speakers today brief, but if you’d like to know more about any of our panelists, you can access their impressive full bios at fedsoc.org.

 

Today we are fortunate to have with us Professor Andrew Koppelman, who is the John Paul Stevens professor of law and professor of political science at Northwestern University where he received the 2015 Walder Award for Research Excellence. His scholarship focuses on issues of the intersection of law and political philosophy. His latest books are The Tough Luck Constitution and Assault on Health Care Reform, Oxford University Press, and Defending American Religious Neutrality, Harvard University Press. He has published more than 100 articles in books and scholarly journals.

 

Also joining us today is Casey Mattox, who is the Vice President for Legal and Judicial Strategy at Americans for Prosperity where he advocates for a legal system that respects a rule of law and protects individual liberty. Over the past 15 years, prior to joining Americans for Prosperity, Mr. Mattox’s legal career focused on defending the First Amendment rights of students, faculty, families, healthcare workers, and religious organizations. He’s litigated in 35 states and testified at least three times before congressional committees.

 

Lastly, our moderator today is Professor Michael Dimino, who’s the professor of law at Widener University Commonwealth Law School where he teaches courses related to constitutional law, election law, federal courts, statutory interpretation, and criminal law. He’s the author of a case book on election law and has written widely, especially on the election of judges, and has been appointed to serve in the Supreme Court of Pennsylvania’s Appellate Court Procedural Rules Committee.

 

I’ll leave it there. One last note, throughout the panel if you have any questions, please submit them via the question and answer feature so our speakers will have access to them when we get to that portion of today’s webinar. With that, thank you all for being with us today. Professor Dimino, the floor is yours.

 

Prof. Michael Dimino:  Thank you very much, Ms. Kleist. Thank you to The Federalist Society. Thanks to all of you for joining. Thank you to Andrew and Casey for agreeing to be panelists today. I had the pleasure of moderating a similar panel when 303 Creative was argued, and Andrew and Casey participated in that as well. So I especially thank them for coming back. The last panel was quite enlightening, and I expect the same from this one.

 

So my role today is to describe the case quite briefly because we imagine that those of you who are tuning into this will already be quite familiar with it and then to facilitate the asking of questions after Casey and Andrew have a chance to give their takes on the Supreme Court’s decision. 303 Creative involves a claim by Lorie Smith, who is the operator of 303 Creative LLC, that Colorado’s antidiscrimination law could interfere with the way that she wants to operate her web design business. She wants to begin offering services for wedding websites to couples who are about to celebrate their wedding, but she doesn’t believe in the morality or correctness of same sex marriage. And so she wants to be able to refuse to offer those services to promote same sex weddings.

 

She fears, however, that this position will bring her into conflict with the Colorado Commission on Civil Rights and the Colorado Antidiscrimination Act, which like many states’ antidiscrimination laws prohibit discrimination on a ground of, among other things, sexual orientation and sexual identity. She therefore brought a declaratory judgment suit, and that’s what the Supreme Court has decided last week. The Court concluded in a 6-3 decision, with the six Republican appointees joining together and the three Democratic appointees in dissent.

 

The Court determined that she did have a First Amendment right to refuse to use her services to promote same sex weddings, regardless of what the Colorado law might have been taken to require. The Court largely relied on a case from a generation or so ago called Hurley in which the Court held that the organizers of the Boston St. Patrick’s Day parade had a constitutional right to refuse to allow a gay rights organization to march in the parade under its own banner. The dissent on the other hand alleged that this antidiscrimination law was a restriction on conduct rather than speech. It prohibited the discrimination against sexual orientation minorities and only incidentally restricted people’s speech.

 

And Justice Sotomayor who wrote the dissent therefore relied on cases such as the famous United States v. O’Brien in which the Court allowed the United States to have a law that prohibited the burning of draft cards and to enforce that law against Mr. O’Brien even when he wanted to destroy his draft card as part of a political protest. So in the dissent’s view, this was a restriction on conduct, and it was permissible to enforce that restriction on conduct even when someone wanted to behave in that prohibited way to make a political point or to express one’s ideological views.

 

All right. That’s a summary of the case. Again, the Court holds 6-3 in favor of Ms. Smith and 303 Creative in holding that there is a constitutional right to refuse to use one’s artistic talents or speech to promote a view that one doesn’t favor. Casey, why don’t you take it from there and give your take on the decision? Andrew, then, will be next, and we’ll have some rejoinder and questions following that.

 

Casey Mattox:  Sounds great. And thanks to The Federalist Society, to the Free Speech and Election Law Steering Committee, working group, and Professors Dimino and Koppelman for joining me. So the Court took this case to resolve the question raised but not squarely answered in Masterpiece Cakeshop, I guess one could also say in Arlene’s Flowers and many other cases over the last decade or so. And that question was whether applying a public accommodation law to compel a creative professional to speak or stay silent violates the free speech clause of the First Amendment.

 

Notably, there were both free exercise and free speech claims. The Court granted only on the free speech claim in this case, so that was the only question in front of the Court. The Court held that it did violate the free speech clause of the First Amendment. I believe this is the opinion in 303 Creative is a relatively straightforward application of basic First Amendment principles to a set of stipulated facts that all but demanded this result.

 

A lot of the disconnect in my view between the majority opinion by Justice Gorsuch and the dissent by Justice Sotomayor is in my view because they’re working from different understandings of the facts of the case. And in my view, Justice Gorsuch is working from the stipulated facts, and Justice Sotomayor is trying to argue against the stipulated facts and trying to sort of fight those stipulations. So the stipulated facts then make a lot of difference in this case.

 

And so I want to begin just by sort of laying out what those facts are, and I’ll take them directly from the opinion here. The facts as the Court recounts them from the stipulated facts, which you can read the entirety of in the record if you’re so inclined -- but the facts are: Ms. Smith is willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender. She will gladly create custom graphics and websites for clients of any sexual orientation. She will not produce content that contradicts biblical truth, regardless of who orders it.

 

And as the stipulated facts demonstrate, that includes not just sexuality issues. For instance, she doesn’t do websites promoting atheism, political messages she disagrees with, things that she views as degrading another person or their faith. And she doesn’t do websites for casinos also comes up in the record. Her belief that marriage is a union between one man and one woman is a sincerely held religious conviction, so that question was off the table.

 

All the graphic and website design services that she provides are “expressive” according to the parties. The websites and the graphics that she designs are original and customized creations that contribute to the overall messages that her business conveys through the websites it creates. Like the other website services she provides, the websites that she would create here are expressive in nature. They would all be customized and tailored, not sort of stock websites -- customized and tailored through close collaboration with the couples to express Ms. Smith’s and 303 Creative’s message celebrating and promoting her view of marriage. And viewers of the websites would know that the websites are Smith’s and 303 Creative’s original artwork.

 

The parties also stipulated that to the extent Ms. Smith may not be able to provide certain services to a potential customer, there are numerous companies in the state of Colorado and across the nation that offer custom website design services. So per the stipulations, I think there’s not really a dispute here that Lorie Smith provides services for people of all races, sexual orientations, genders, etc. And there’s no dispute that services she provides are her own expression and that they are expressive, nor any dispute that the types of services are readily available through others. And obviously you heard the rest of the facts as well.

 

The Tenth Circuit -- neither court quibbled with any of those stipulations. And the Supreme Court noted its agreement with much of the Tenth Circuit’s analysis, including the Court’s conclusion that the wedding websites that she creates would qualify as pure speech under Supreme Court precedents. And thus, Colorado had to set aside strict scrutiny. The Tenth Circuit had said strict scrutiny applies. They just found strict scrutiny satisfied. The Supreme Court agreed that strict scrutiny applied.

 

But the Court disagreed with the Tenth Circuit’s application of strict scrutiny to that set of facts. The Tenth Circuit had gone on to decide that because Smith’s expression was uniquely hers, despite the fact that there are lots of other website designers -- and in fact when you’re talking especially in the website design world there’s even the question whether even it makes sense to limit the universe of potential people who could provide services to Colorado or whether it’s essentially anyone in the world who could provide those services, if it’s simply an email away to be able to get those services online. But the Tenth Circuit had gone on to say that because the expression was uniquely hers, the government’s compelling interest in stamping out discrimination under the Colorado Antidiscrimination Act couldn’t be fully satisfied without requiring her specifically to provide her unique expressive services.

 

This is what you’d see described as a monopoly of one, which I will quibble with only because all monopolies are a monopoly of one, but that’s a whole other -- that’s sort of a frustration of mine with this concept, as if it’s a brand new thing. But essentially the idea was she has a monopoly on her own speech, and because she has a monopoly on her own speech, access to services from anyone else is not going to satisfy the Colorado Antidiscrimination Act. The Supreme Court recognized the unexceptional proposition -- what it described as an unexceptional proposition that states may prohibit forms of discrimination in places of public accommodation, including on the basis of sexual orientation. And it also recognized that no public accommodation law is immune from the demands of the Constitution, particularly where statutes sweep too broadly and are deployed to compel speech. And of course you have cases like Boy Scouts v. Dale, Hurley, and other cases where that tension has been present before.

 

And the Court said in the end when a state public accommodations law and the Constitution collide, there can be no question which must prevail, citing the supremacy clause. The Court walked through its compelled speech precedents from Barnette to Wooley to Hurley and Dale and concluded that the compelled speech here was no less unconstitutional. As to the Tenth Circuit’s monopoly theory, the Court said “In some sense, of course, her voice is unique. So is everyone’s. But that hardly means a state may co-opt an individual’s voice for her own purposes. Were the rule otherwise, the better the artist, the finer the writer, the more unique his talent, the more easily his voice could be conscripted to disseminate the government’s preferred messages. That would not respect the First Amendment. More nearly, it would spell its demise.”

 

As the majority explains, this does not mean that states can’t enforce antidiscrimination laws. Of course the same justice, Justice Gorsuch, wrote the Bostock decision just a few years ago holding that Title VII of the Civil Rights Act required employers not to discriminate on the basis of gender identity. And no First Amendment defenses were even brought in those cases.

 

One note on standing, it’s never been, and I believe should not be, in dispute for a few reasons. This has come up more recently obviously since the decision, so this is a bit of a postscript to the decision itself. But this was a pre-enforcement challenge. Pre-enforcement challenges are relatively common, especially in the First Amendment context. And laws that -- it’s generally understood that laws that infringe First Amendment rights -- the Virginia Booksellers case is a good example of those. You don’t have to submit to the infringement on your constitutional freedoms in order to then challenge it.

 

They do require a credible threat that the law would actually be enforced by the government. Colorado acknowledged it would enforce the law against Lorie Smith all the way through and has of course made that very clear in the way that it has argued the case. And of course standing in opposition of the idea that we don’t know what Colorado would do is the existence of Jack Phillips, who is, I think, on his third or fourth attempt to enforce this law against him in obviously very similar circumstances.

 

So I think there’s really not a doubt. But even if there was a doubt about that, I think the other problem that sort of demonstrates why standing was present here the Court doesn’t really have to deal with what’s often called the publication requirement under the Colorado Antidiscrimination Act because as the Court notes you’ve got basically -- the Publication Act, by the way, is the requirement that says under the Colorado Antidiscrimination Act not only are you prohibited from discriminating in public accommodations but you also can’t publicly say things that would -- I’ll give you the language. It’s unlawful to publish any communication “that indicates that services will be declined or that an individual’s patronage or presence is unwelcome, objectionable, unacceptable, or undesirable because of” one of the protected statuses in the CADA.

 

So what that would mean is that had the Court not decided this case the way it did on the underlying discrimination provisions, public accommodation provisions of the CADA, Lorie Smith wouldn’t be able to even publicly say I do these websites, but I only do websites for these types of couples, not these couples. So she couldn’t even make that public representation. So you have essentially a prior restraint on her ability to even be able to say that. So I think that helps to enforce that there was standing here.

 

So I know we’ll certainly have a lot of back and forth on this, and so I wanted to make sure we have plenty of time for Professor Koppelman. And then I can respond. He can respond to me, and we can go from there.

 

Prof. Michael Dimino:  Thank you very much. Andrew, go ahead.

 

Prof. Andrew Koppelman:  Very good. I just want to add one thing to my introduction because I actually have yet another book which I guess isn’t in the Federalist Society’s standard bio. Burning Down the House: How Libertarian Philosophy Was Corrupted By Delusion and Greed just out. Anybody who is tempted by libertarianism needs to read this book. But this case of course is about something else.

 

So my largest problem with the Court’s decision in 303 is that it carves out a new exception to the application of antidiscrimination law, one that doesn’t readily follow from any previous case. So we now have a law that there is a category of businesses that have a constitutional right to discriminate. And the Court is so vague about what the contents of this category is that it’s very hard to tell what the boundaries are. And then there are earlier decisions by members of the same majority, particularly Justice Gorsuch and Justice Thomas, that suggest that it’s going to be read quite capaciously.

 

So Gorsuch concedes in the majority opinion in 303 that determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions. But he says here the parties stipulated that the activity here is expressive. But the balance of expressive activity you could say -- Dale Carpenter has recently published a defense of what the Court has done in Masterpiece construing it quite narrowly. He says here it mattered that the products were expressive and that they were customized. Most expressive products are not customized. Most customized products are not expressive.

 

By repairing the engine of a limo that’s going to be used in a wedding is not expressive. And then to figure out what counts as expressive he suggests what has historically counted as expressive, what are intrinsically or inherently expressive elements in the work. And so something like this was suggested in an amicus brief that he and Eugene Volokh wrote in this case and in some earlier cases, and it would be a sensible approach, I think, if you were going to carve out this limitation.

 

I am troubled, though, that the Court just said, well, since they stipulated it, we don’t have to say anything at all about what a balance of the categories are. And when the parties made this stipulation, they did not think that they were carving out a new legal category. They thought that they were just stipulating to facts. So I’m troubled by the Court simply adopting this category without telling us anything at all about the contents.

 

If the parties had stipulated that some websites are blessed by angels, I suppose you could say, well, that must have legal significance. But I don’t know why it should. And I’m particularly troubled because there was an earlier case -- so Casey mentioned the Masterpiece Cakeshop case where the argument was made that a wedding case is inherently expressive. And that case drew opinions by Justice Gorsuch and Justice Thomas I guess most pertinent here because Gorsuch thought that there was discrimination against religion. It’s Justice Thomas’ opinion joined by Gorsuch which argued that the First Amendment is involved any time anybody sells a wedding cake because a wedding cake is inherently expressive. Selling a wedding cake is like using words.

 

Problem with Thomas’s concurrence, which again Gorsuch joined, is that even if you sell an off the shelf wedding cake, which for all we know from the facts of Masterpiece Cakeshop might have been what ended up being sold to the customers had the baker not turned them away instantly, that that would count as expressive, even though it would not involve original creativity in the production of that wedding cake. Another possibility is a case where something is produced on a customized basis but one’s expressive skills are not used in the creation of this object. So one of the possibilities in the Jack Phillips case was Mr. Phillips in Masterpiece Cakeshop keeps a book of cakes that he has already designed. And at the time when he told his same sex couple to leave his -- that he wouldn’t sell them anything, they were looking through his book.

 

It is possible, even if one stipulated that custom designing a wedding cake involves enough artistic skill to be expressive under the new 303 Creative standard, if they were to pick out a cake from his book and ask him to recreate that, he would not be using his creative to design that cake. He would be acting as a mere artisan following a design already in existence. If that counts as creative and apparently Justice Gorsuch thinks that it does, then the bounds of the creative is even more broadly defined.

 

I agree with Casey about standing. The threat that there would be litigation is real, and the reason we know that is because the current litigation against Jack Phillips is being pursued by an activist who clearly is out to get anyone who she thinks is engaged in discrimination against gay people for any reason at all. This is a case involving a transgender woman named Autumn Scardina who after the Masterpiece Cakeshop case was filed went into Masterpiece Cakeshop and said that she wanted a cake that was blue on the outside and pink on the inside. That is not asking for any particular exercise of creative skill.

 

It doesn’t take any creative skill at all to bake a cake out of pink dyed flour and then put blue frosting on it. However, she told Jack Phillips “And I want this to celebrate my gender transition.” And Jack Phillips wouldn’t do it.

 

Now, clearly Autumn Scardina intends to sue anybody who Autumn Scardina is likely to engage in refusals of a kind that offend Autumn Scardina. And so this seems to be sufficient to make standing an easy question. Of course somebody’s going to pounce on 303 Creative as soon as the case is decided or as soon as the website goes up and it’s known about. So I’m not troubled by standing. But I also think that Ms. Scardina’s case is very cleverly put together. Scardina’s not asking for any creative and innovative deployment of one’s creative faculties in order to fulfill that order. And so if one was going to construe the result in 303 Creative in order to protect Jack Phillips in that case, one would need to construe it very broadly indeed.

 

The only other thing that I’ll say is the publication requirement -- which I think I’m going to disagree with Casey that it’s a prior restraint. It’s only a prior restraint in the sense that it is a warning to people. If you violate this law, you will be punished. That’s not a prior restraint. That’s subsequent punishment. The reason why these Publication Acts are generally permissible is because free speech does not protect a threat to engage in illegal conduct.

 

The reason why -- when I was kid, if you opened the newspaper and you looked at the advertisements, they classified ads for employment listed help wanted, male, and help wanted, female. And they don’t do that anymore because that’s announcing your intention to discriminate, and you can’t announce your intention to illegally discriminate. 303 is going to be able to make these announcements now because after this decision they’re no longer threatening to engage in illegal conduct.

 

It is now clear that the specific conduct that 303 proposes to engage in is not illegal conduct. And so now they’re just announcing their intention to do something they’ve got a right to do. It’s not illegal conduct anymore. But as a general matter, these publication laws are perfectly constitutional because you can’t threaten illegal conduct. I think that I’m going to stop there.

 

Prof. Michael Dimino:  All right. Thank you very much. You have both very much lived up to my hope and expectation that you would be just as enlightening as you were the first time around. So Casey, you get a chance to respond to Andrew and then vice versa before we go to questions.

 

Casey Mattox:  Yeah. I think you’re right on the publication ban as to the question of whether it’s a prior restraint. I think you are probably correct on that point. I think the -- as to this idea, though, that this did not -- or that this is sort of a new exemption from public accommodations laws, I see this as perfectly consistent with what the Court had said in Hurley. Essentially public accommodations laws have always had to have sort of the backdrop of the First Amendment here. What are the places where they would come into conflict with First Amendment rights? I don’t think it’s a new exemption there.

 

I think Hurley demonstrates that there are limitations on how far public accommodations laws or any law can go if it begins to infringe on First Amendment freedoms. But I don’t think that is a new thing here. I take that as simply an application of that same point from Hurley. One might argue—and I suspect we may get questions about this—yeah, but this is different because in Hurley that was a unanimous Supreme Court. But in Hurley it wasn’t for profit. So it was public accommodations, yes, but it wasn’t a for profit business that was engaged there.

 

I think that leads you to a lot of very challenging hypotheticals in the other direction, though, because it is not difficult at all to think of a lot of things that I think probably everyone would agree are clearly artistic and expressive of the artist’s own views and were also paid. I’m going on a family trip soon, and we’ll be seeing the Sistine Chapel. And that’s perhaps the best example I could possibly come up with of a paid commission that’s expressive. So the fact that something is paid certainly doesn’t remove the expressive component of it.

 

So I think when Justice Sotomayor is trying to point to O’Brien and cases like that -- and I will say I completely agree that it is going to be challenging. The courts will have to continue to be challenged in trying to discern is this expressive? To what degree does it infringe on the business owner’s expression? Those are going to be some challenging hypotheticals that I think are going to come up.

 

But it’s nothing new in the First Amendment context. And O’Brien actually is a great example of it. The courts have been dealing with the question does this infringe expression or not the same way they’ve had to deal with the question does this infringe on free exercise or not? And you have difficult questions of whether something is speech, whether it’s expressive conduct in O’Brien. That’s already been part of the challenge the courts have to deal with.

 

But this case was a much easier one because the parties had stipulated that everything happening here was expression. And I think even if they hadn’t stipulated to be clear I think this would’ve been a relatively easy case among those because of the fact that you are dealing with the actual communication of words on a website. It sort of takes it out of the -- in the cake context I understand that there are always going to be some questions about, well, is this cake expressive? Is that cake expressive? But in this case it’s someone who’s actually literally communicating words.

 

So I think the other hypotheticals that I would pose that I think become really difficult not in front of this Court but in some jurisdictions you have the addition of political nondiscrimination, political ideology nondiscrimination being added to public accommodations laws. If the First Amendment didn’t apply here to protect 303 Creative, then what do you do in those circumstances where the government says you are prohibited from discriminating against a person on the basis of their political views? And you have, for example, someone who actually does literal political work, campaign work, and says, well, I’m a Democratic Party campaign organization. I don’t want to do ads for Donald Trump. And I think surely the First Amendment has to speak there despite the fact that the person is receiving compensation. I’ll leave it there and see if you’ve got responses, and then we can open it up.

 

Prof. Michael Dimino:  Very good. Andrew.

 

Prof. Andrew Koppelman:  All I’ll say is that this is very sensible, but I wish that the Court had laid down a standard instead of relying on the stipulations or if there had not been the stipulations. If somebody refused to repair the engine of a limousine for a wedding and let’s imagine that it’s a contrived collusive case, both parties stipulate that auto engine repair is collusive -- is expressive. Does that mean that courts are now going to lay down that auto repair is expressive and then make that binding against nonparties? The Court really needed to do better than this. It needed to give us some clue as to where the line is.

 

Prof. Michael Dimino:  But the nature of a stipulation is that it’s not binding on nonparties; right? It’s just it’s a question of fact. So where that fact is disputed, then it can be different.

 

Prof. Andrew Koppelman:  Yeah. Just I wish I knew what the rule of law is.

 

Prof. Michael Dimino:  Well, you and me both. I have a question about the relationship between this case and O’Brien so mostly directed at least initially to Casey, I think. The difference between this case and O’Brien can’t be whether the behavior is expressive or not because surely O’Brien’s behavior was expressive. Everybody knew why he was burning his draft card. There wasn’t any question about that.

 

The difference that appears to me from reading this opinion is the majority’s reliance on the Tenth Circuit’s conclusion that the reason for Colorado’s law is to drive out opinions that it disagrees with, to drive out kind of antigay attitude. And if that’s true, if the purpose of the Colorado law is to enforce a kind of orthodoxy, well, then the law is not unrelated to the suppression of expression as O’Brien requires, and the O’Brien rule wouldn’t apply. But that’s --

 

Prof. Andrew Koppelman:  Although if that’s true, then it means that all antidiscrimination laws are unconstitutional because the Tenth Circuit -- I mean, the Tenth Circuit opinion is silly on multiple levels. And this one which the Court repeatedly gloms onto as if it were a finding of fact it’s just bizarre. Courts of appeals do not find facts, so the Tenth Circuit makes the silly statement, and it’s repeated by the Supreme Court.

 

And this worries me because there is a comparably silly statement in Thomas’s concurrence in Masterpiece where Thomas says, well, if a function of antidiscrimination law is to prevent offense, well, you can’t suppress speech because it creates offense. So there is this general idea that preventing the humiliation of customers by turning them away violates the First Amendment. It’s a crazy idea, and it now has multiple opinions in the Supreme Court embracing it. It’s just silly. There’s nothing to be said on its behalf.

 

Casey Mattox:  I will --

 

 

Prof. Michael Dimino:  Well, that’s sort of where I was going with the question was that it seems that Gorsuch treats that almost the same way that he treats the stipulations. But it’s particularly odd and makes me wonder that in the next case, if we have a state that defends its law with a more clearly stated, better explanation than we want to drive out opinions that we disagree with, does anything about this case change? And is there a way to distinguish these kinds of facts from O’Brien other than relying on that kind of statement? Casey?

 

Prof. Andrew Koppelman:  I will say in defense of Justice Gorsuch here he does say in his opinion that antidiscrimination laws are generally permissible. States may protect gay persons just as they can protect other classes of individuals. There are no doubt innumerable goods and services that no one could argue implicate the First Amendment. So I think that Justice Gorsuch is just confused on this point.

 

Casey Mattox:  So I’d say I don’t think he’s terribly confused. I think it actually follows from the way Colorado argued the case. He says at one point it’s a finding. Otherwise, I think it was only at one point he describes it as a finding. But I think it basically just sort of follows from the way Colorado had argued the case, that it sort of -- when it’s attempting to satisfy its burden under strict scrutiny, it has to say why Lorie Smith? Why must she specifically be the one to provide a specific service? And I think the extent to which Colorado went in make that case sort of led to that conclusion. It seems like the problem is you’re trying to make sure that no one thinks the wrong thing here in the business world at least.

 

Prof. Andrew Koppelman:  Protecting customers from the humiliation of being turned away is not thought control. You can think whatever you want. You just can’t humiliate somebody who walks into your store in a particular way. Those are different things.

 

Casey Mattox:  Right. But then Colorado also does things like require you to go through remedial training -- the business owners to go through remedial training. All that starts to sound as they had noted -- at least in some of the concurrences in Masterpiece Cakeshop really starts to sound a lot like a sort of goal of thought control.

 

Prof. Andrew Koppelman:  This is a -- and Gorsuch glommed onto this in his argument as well. In general when a business has violated the law, it is legitimate for the state to ask it to train its employees not to violate the law anymore, and that’s all the training that goes on here. It’s a mischaracterization of what the training is about.

 

Casey Mattox:  But I think the real challenge here, and to your original question, Mike, is that you’ve got -- I don’t think that that is necessarily the thing that distinguishes this from the O’Brien context. I think in the same way that the -- I think the Tenth Circuit certainly didn’t rely on that as the reason why the Tenth Circuit was saying this is not expressive conduct. The fact is that everyone sort of at every level of this saw this as not just an expressive conduct question but as literally expression. The only thing that’s conduct about it is the fact that you’re also receiving payment for it.

 

But in my view and I think the Tenth Circuit correctly and the Supreme Court here concluded that that itself is not enough to change the dynamic so that you’re not just engaged in expression; you’re now engaged in expressive conduct because you are in business. And I think that has to be the right rule. If you think about the First Amendment rights and businesses, in any other context -- sort of take us out of this sort of heated context, The New York Times is a for profit business that surely everyone agrees is engaged in expressive activity and not expressive conduct. It’s engaged in expressive activity.

 

And the examples you could give as I gave earlier about things like the Sistine Chapel, for that matter you could have a hypothetical that you could have the wedding singer who wants to be able to sing the Ave Maria -- is paid for singing the Ave Maria. This is a classically trained singer singing a literal prayer in wedding services, and then she’s asked -- to take it even out of the same sex marriage context, she’s asked to sing that for a wedding for people of a different faith and says, well, first of all, I don’t even understand why you’re asking. And second of all, this would be sort of -- to the extent it’s just you like the way I sing, I don’t want to sing that song because it changes the meaning of the song if I’m singing that same song for this wedding. I think that clearly has to be expression and not expressive conduct within the meaning of O’Brien. So I think it basically is just the question of is it expressive or not.

 

Prof. Michael Dimino:  All right. Thank you, both. I have one more question before we get to the questions submitted by the audience. And as a reminder to the audience, if you have a question, you can submit the question through the Q&A function on your computer. Were either of you surprised by the extent to which Justice Sotomayor’s dissent read as an ode to antidiscrimination laws?

 

Gorsuch makes a kind of snide point at one point in the majority opinion where he says, “When the dissent finally gets around to the law, then,” blah, blah, blah, blah, blah. But there is half or more of Justice Sotomayor’s dissent reads as we as a society have come so far to protect the rights of minorities, particularly LGBT people. And now this is backsliding. Was that surprising to either of you that there wasn’t more reliance throughout her opinion on cases and traditionally legal arguments?

 

Prof. Andrew Koppelman:  I thought that -- well, my biggest reservation about the whole enterprise of this litigation is that we’ve had antidiscrimination law regulating commercial conduct, some of which is quite meaningful to the people who engage in it, for decades now. And in cases of race, we have not had judicially crafted free speech exceptions until now. So we’ve gotten along fine without this new category. And now in cases of sexual orientation, suddenly we have all of these exceptions being proposed.

 

And in Masterpiece Gorsuch and Thomas were ready to understand the exceptions quite broadly. And even broader exceptions have been proposed. So even though I’m not -- a narrow exception I don’t oppose. But this is not a case where I’m entirely easy in my mind, so I take it what Sotomayor was doing was saying look what we’ve been doing for a long time. This is important. Now you are blowing a hole in it of indeterminate dimensions. And this is a big deal.

 

Casey Mattox:  Yeah. I would say that I am -- if I can say I’m not surprised but I’m disappointed. How about that? I’m not surprised that her opinion reads as it does, but I do think that it doesn’t really in my view grapple very much with the First Amendment case law. It doesn’t deal with Hurley, for example. It doesn’t deal well with the fact that -- that there would be -- she sort of points to hypotheticals but doesn’t deal with the hypotheticals that one would otherwise face or frankly with the stipulations in this case that I think are at least -- I could understand an opinion that’s a little less energized that basically says, look, given the stipulations, this is where we are. I am concerned about X, Y, and Z, and this is the exemption that I would create or the test that I would create to deal with the cases moving forward, for example. That, I think, would’ve been a different thing. So yeah.

 

Prof. Michael Dimino:  Okay. Thank you, both. We’ve got a couple of questions in the chat about whether this case has implications for laws requiring the use of preferred pronouns or prohibiting the misgendering of people. Either of you have thoughts on that question?

 

Casey Mattox:  I think it may. And I think those cases have been working their way through the courts. You’ve got the Meriwether case, I think, in the Sixth Circuit. You’ve got a number of cases that have dealt with those questions. I expect that’s going to get to the Court at some point.

 

I think maybe just connecting this with the prior point I think when Justice Sotomayor is concerned about, well, we’ve been able to have these public accommodations laws or laws like this for so long and we haven’t had this exemption, I think that actually just demonstrates how well public accommodation laws and the First Amendment can coexist. But there are new implications -- so largely pushes back against many of the sort of race hypotheticals and things like that because they’ve been able to coexist for a very long time. You haven’t seen the situations occur because the hypotheticals really just don’t occur.

 

But when you have something like the -- when you start changing the public accommodations laws to include sexual orientation and the implications that has in the religion context and then when you start adding pronoun laws, all of those start to have a lot more of an expressive character to them and directly raise some kind of current, contemporary First Amendment questions. So I don’t think it’s that we are sort of creating a new First Amendment exemption. It’s always been there. It’s just that the opportunities for that conflict are increased in this particular context.

 

Prof. Andrew Koppelman:  Just on the misgendering laws, there are two different types of situations. To the extent that if there are laws on the books that purport to criminalize simply misgendering a person, you don’t need this case to say that that’s unconstitutional. That’s a viewpoint restriction on speech. It doesn’t involve any expressive conduct. It’s just speech. That is an easy one.

 

The Meriwether case in the Sixth Circuit is stranger, though, because there the state is acting in a different capacity. It’s operating a university and trying to control the speech of its employees on the job. So as a general matter, a state cannot criminalize directing vile, racist epithets at Black people. It’s protected speech. There’s no unprotected category of hate speech.

 

If a professor starts using those epithets when he addresses his Black students, I think that it’s obvious that a university ought to be able to discipline the professor for doing that. The Meriwether case seems to point in another direction and say the professor’s got a free speech right to address his student in any way he likes. Now, I don’t think that the Sixth Circuit thought through the implications of what it was proposing here. It can’t possibly be right.

 

Prof. Michael Dimino:  Again, thank you, both. Another question asks whether there’s any significance to the fact that Ms. Smith in this case created the expression that was at issue here. The questioner says the student in Barnette did not create the pledge of allegiance. The driver in Wooley v. Maynard didn’t create the Live Free or Die message on the license plates, etc. So what difference does it make whether the baker or the flower arranger or the wedding singer or the web designer is creating something as opposed to just a business supplying an off the shelf element or product to be used in an activity that that person doesn’t want to support?

 

Prof. Andrew Koppelman:  Well, I think that we’ve got now two different tranches of compelled speech doctrine because all these earlier cases did involve being required to publish or speak something that the person themselves didn’t author. The most powerful claim that is made here and in general in these creation cases is that the person is generating something new, and so it’s a more intimate intrusion on the person to say you’ve got to generate new words that had not previously been generated. And they’ve got to have the right level of enthusiasm or else we’re going to say that you’re discriminating.

 

So that’s, I think, a different kind of compelled speech. And this matters because in some of the hypotheticals that have been proposed if the customer wants to put words on the cake and the customer supplies them, the creative faculties aren’t being deployed. But you could see how there might be a compelled speech claim if, for example, a professional printer who reviles Donald Trump is asked to print Donald Trump posters.

 

Casey Mattox:  And you have in this case -- so I would say I think the Barnette case maybe is a more challenging example because I think while they didn’t create the pledge, they would be certainly verbally creating the words. You’re directly having to engage in the expression repeating the words. But I think it’s a good point. This is certainly going to be something that the courts are going to have to work through.

 

Some people argue the attribution is the key. I don’t think that really is the necessary piece here. Is the government excused of a compelled speech problem because of the fact that it says but you can add a disclaimer if you would like? I think one challenge for Colorado is whether the disclaimer would actually -- even if Colorado said, well, we will allow you to have a disclaimer, would that run into problems under Colorado’s own publication ban? If Colorado said, well, Lorie Smith, we’ll deal with your compelled speech problem by saying you must create the website, but you can say on the website or on your own website that I disclaim anything to do with this particular expression; I’m doing it under duress -- I think a straightforward application of the Colorado Antidiscrimination Act would be to say, well, you can’t do that.

 

The publication ban would say you can’t tell customers that and communicate that to the world. So certainly these are going to be questions that need to be resolved by courts going forward. I think that’s what will keep First Amendment lawyers busy for some time trying to work out exactly what kind of the contours of this are. But I think you’re sort of left here with a pretty straightforward case as it actually came to the Court.

 

Prof. Andrew Koppelman: I’ve got nothing to add. I sit opposite. The job of courts is not to keep First Amendment lawyers busy. Ordinary citizens would like to know what the law is. That’s what we’re paying the Court to do.

 

Casey Mattox:  We might’ve lost Mike. Either that or he’s very curious here.

 

Prof. Andrew Koppelman:  Or he is muted. I don’t know if he knows he’s muted.

 

Casey Mattox:  It looks like he’s both muted and frozen. He’s certainly not expressive.

 

Prof. Andrew Koppelman:  Oh, he is leaving and rejoining. That might --

 

Chayila Kleist:  We are at almost to the top of the hour, so if there are final thoughts or final comments on this, we’d love to hear them. And then we can wrap it out.

 

Prof. Andrew Koppelman:  I’ve said everything that I need to say.

 

Casey Mattox:  I think the only thing that I would say is I think ultimately obviously you had -- I think one could step back from a case like this and see this as -- and certainly when you put it together with Obergefell and Bostock and those cases, I think one could certainly see this as this is how pluralism works. If we’re going to be able to have a society where people -- where everyone feels free to be able to participate fully in society, you’re probably going to have to have a little bit of give and take. And I think this is a demonstration of where that works, that if you’re going to have things that conflict with people’s fundamental beliefs, that you’ve got to be able to have some opportunity for people to be able to have those beliefs respected.

 

So I think if you look over the last two decades at where we are, there’s probably a lot for people to like and not like on both sides of these questions. And that’s probably how it ought to be, that you’re not going to like every aspect of the way the Court has come out on these questions. But overall, I think it looks like something that people should be able to respect as something approaching pluralism.

 

Prof. Andrew Koppelman:  I think the only thing I’ll add to that is -- and I have a book, that book on Gay Rights vs. Religious Liberty? The Unnecessary Conflict. There’s a limit to how useful courts can be here. If one is trying to come up with accommodations where everybody is okay, that is different from devising abstract principles. You’ve got to be more attentive to what accommodation is appropriate in particular cases. The Autumn Scardina case against Jack Phillips, for instance, is pure harassment. It’s hard to justify. It is also hard to think of any good abstract principle for dismissing it. And I worry that such principles are going to be carved out in order to reach cases like this. And they will be way overbroad. So I worry.

 

Chayila Kleist:  Got it. Well, we can wrap it there. Thank you all for joining us today. We really appreciate you carving out this time in your afternoons to talk about this important case, the decision, sort of what it may mean moving forward. Thank you also to our audience for joining and participating. We welcome listener feedback by email at [email protected]. And as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We are adjourned.