The Colorado website designer case: Wrongly Decided

"Two roads diverged in a yellow wood,
And sorry I could not travel both
And be one traveler. . ."
       Robert Frost: "The Road Not Taken"

An attorney tells me the Supreme Court got it wrong in the Colorado website designer case.

The plaintiff, Lorie Smith, said she disapproved of gay marriage, but that a Colorado law forbade her from publishing a statement on her website saying "I will not be able to create websites for same-sex marriages. . . . Doing that would compromise my Christian witness." The Supreme Court decided in her favor.

This is the first of two Guest Posts on this subject. Both are written by lawyers, both college classmates. This post, by John Shutkin, generally aligns with the commentary I get from "liberal media" and Democrats. That commentary calls the decision stigmatizing, making LGBTQ people second-class citizens. They call it a return to open discrimination of the pre-Civil Rights era. They fear it portends using an expansion of "free exercise of religion" doctrine to empower public displays of prejudice and permit discrimination in business services. Today gays. Tomorrow Jews, Blacks, anyone.

John Shutkin is a retired corporate attorney who finished his career as General Counsel for two international accounting firms. He is a frequent speaker and panelist at accountants' risk management and legal ethics conferences.

Guest Post by John Shutkin

Shutkin

The SCOTUS majority issued so many odious and legally unsupportable decisions at the end of its term it is hard to keep track of all of them or everything that is wrong with them. But I will focus solely on the 303 Creative case here. That is the one in which, citing the freedom of speech aspect of the First Amendment (not, for whatever reason, the Freedom of Religion aspect), the majority held that a web designer could be free to refuse to provide web design services concerning a same-sex marriage.

Most fundamentally, as Justice Sotomayer noted in the dissent, the majority here, while speaking of speech, is really dealing with conduct. The plaintiff is free to think and say whatever she wants about same-sex couples, but she cannot operate a public business that discriminates on the basis of what she thinks and says about them.

One of my wise classmates, also a lawyer, has stated that, since the admitted discrimination was not based on who the customer was – i.e., gay or straight – but on the message that was conveyed by the service, this discrimination, while odious, was nonetheless protected by the First Amendment.

Respectfully, I disagree on this. While, yes, the discrimination is not based on who the customer is, it is based on the actions of the owner of the business, and not simply on her thoughts and words (which are protected by the First Amendment). In other words, while she is free to be as openly homophobic as she wishes in her own statements, she should not be able to run a business where she is also free to pick and choose whether to provide her services, ostensibly offered to the public at large, based on the message that her clients request her to provide.

Of course, why anyone would choose to hire an openly homophobic web designer to design a website for a same-sex marriage is beyond imagination, but that is not a legal question. And, as has also been noted by many commentators, the case should have been thrown out without even any consideration of its merits since it was so clearly not a "case or controversy" ripe for adjudication, but a request for a purely advisory opinion, which is a fundamental judicial no-no that every first year law student is taught about. (Quite obviously, the case was conceived and put together by an anti-gay political group that then shopped around -- pretty sloppily, it would appear* -- for a willing plaintiff to sign on to it. The same was done by anti-abortion activists in the Mifepristone case in Amarillo, Texas.)

This analysis from Above the Law, while typically snarky, I think illustrates the points: reading the blogs of Robert Hubbell (a lawyer whom I know slightly and respect greatly) and the brilliant historian Heather Cox Richardson, as well as the various legal commenters whom they, in turn, link to: 

Robert Hubble's substack blog.
Heather Cox Richardson's substack blog.

Tomorrow, an opinion supporting the majority decision by classmate Richard Friedman.

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