Ari Armstrong, Civil Liberties, Legal, Politics, Uncategorized

Armstrong: Colorado leftists get it wrong on 303 Creative decision

Lorie Smith and her attorneys are liars, according to Colorado Sun columnist Diane Carman. What is her evidence for this? Well, she doesn’t have any. But why let a niggling thing like evidence get in the way of self-righteous fury?

Smith, you may recall, is the owner of 303 Creative, the graphic-design business at the center of a recent Supreme Court case that carved out some narrow exceptions to public-accommodation laws where made-to-order, expressive goods and services are concerned. We’re talking about a small fraction of what’s available in the marketplace. I think it was the right decision that protects the right to freedom of speech; Carman hates it

Doing Carman’s research for her

True, someone lied. But there’s no evidence that the liars are Smith or her lawyers. Smith and her lawyers claimed 303 Creative got an inquiry about doing work for a gay wedding for “Stewart and Mike.” But when the left-leaning New Republic contacted Stewart, he said he never made any such inquiry. It’s an important piece of journalism. If Carman had read it carefully, she might have noticed that the author of the piece, Melissa Gira Grant, concedes Smith and her lawyers “perhaps unwittingly” took the inquiry at face-value. Apparently they were tricked.

Or Carman might have turned to commentary by attorney Adam Unikowsky, who points out, “There is no evidence whatsoever that either 303 Creative or ADF (its counsel) [the Alliance Defending Freedom] fabricated the fake request.” ADF states, “No one disputes that Lorie did in fact receive the request.”

The false request did not change the outcome of the case. If 303 Creative had not received the request, or if Smith’s lawyers had not mentioned it in their legal documents, the outcome would have been precisely the same.

The Supreme Court’s decision did not hinge on the inquiry for “Stewart and Mike” or on any other specific inquiry. Rather, the ADF lawyers argued, and the deciding judges agreed, that the case was a “pre-enforcement challenge.” ADF, of course, thinks that’s perfectly legitimate: “Pre-enforcement challenges like Lorie’s are common, they’re a hallmark of civil-rights litigation, and they’re an essential part of our judicial system. No one should have to wait to be punished before challenging an unjust law.”

Phil Weiser climbs on the bandwagon

I agree that pre-enforcement challenges are fine. Why should someone have to put themselves in legal jeopardy before a ruling? And it’s abundantly obvious that the state of Colorado had every intention of pursuing people like Smith in the sort of cases at issue. After all, the state has relentlessly hounded Jack Phillips of Masterpiece Cakeshop for declining to bake cakes for gay weddings and other events to which Phillips objects.

Attorney General Phil Weiser’s claim that the case proceeded “without any basis in reality,” then, is ridiculous. No serious person doubts the state would have gone after Smith (prior to the recent decision) had she received a request to make a web site for a gay wedding and then declined the request. The case isn’t ultimately just about Smith; it applies to any Colorado business owner in comparable circumstances.

The real debate, as Carman eventually concedes, is not over whether the fabricated inquiry affected the outcome of the case, but over whether a pre-enforcement challenge was appropriate in this case. Unikowsky, for example, argues, “Without Stewart and Mike, 303 Creative’s claim of standing was questionable. Stewart and Mike gave a boost to 303 Creative’s claim of standing.”

However, although Unikowsky says “the course of proceedings in the Supreme Court might have been different” had the inquiry been known at the time to be fake, he concedes that Smith’s standing did not depend on it. He writes, “The particular lower-court judges in this case didn’t ultimately rely on Stewart and Mike—the district court found that 303 Creative lacked standing even with them, and the Tenth Circuit found that 303 Creative had standing without mentioning them. But it is easy to imagine other judges deeming the Stewart and Mike allegations to be outcome-determinative.”

Okay, but the actual case proceeded with the real judges, not the imaginary judges that some might have preferred.

True, Smith’s lawyers probably should have checked out the inquiry before including it in their legal documents. But that’s a far cry from claiming they lied about it.

Looking beyond tribalism

The 303 Creative case has become a familiar chapter in America’s culture wars, and that’s too bad.

Lots of people on the left—and this includes today’s ACLU—do not take seriously enough the real underlying issues pertaining to freedom of speech. And lots of people on the “right” (these categories are of limited use) try to excuse Smith’s behavior totally apart from the legal issues involved.

I’m unusual in that I condemn Smith on moral grounds but defend her on political grounds. It’s the whole “I disapprove of what you say, but I will defend to the death your right to say it” stance. Or not say it, in this case.

As others have pointed out, the decision at hand is not just about bigoted Christians refusing to design web sites for gay weddings. It is about the rights of everyone—including LGBTQ people—to decline to create products expressing views with which they disagree or find abhorrent.

The decision also protects a gay person who declines to create a cake ordered by a Christian declaring that homosexuality is an abomination. It protects an atheist who declines to create a web site praising God. It protects a Muslim who declines to write or edit text for-hire advocating Mormonism or some other religion.

The decision does not prevent the rest of us from making moral judgments about Smith or anyone else. The decision does prompt us to recognize that it’s not the government’s job to punish all behavior that is immoral or that many people regard as immoral.

Exaggerating the outcome

Again, the decision pertains only to made-to-order, expressive products. So Rep. Brianna Titone continues to exaggerate the scope of the issue when she suggests to Westword that there is now a “possibility of being turned away because of who you are.” A store cannot kick you out or deny you service for being gay or Christian or transgender or a Muslim or whatever.

Still, Titone is right to worry that, in some cases, “it’s ambiguous as to what’s going to come next.” There are some possible cases that are genuinely difficult.

Law professor Kyle Velte gives some examples of such cases in an interview with CPR. He says, “If you’re a same-sex couple who hires a calligrapher to write the menu for your wedding, is that expressive speech in the same sense that the wedding website is? And if the answer to that by a court is yes, then calligraphers can turn away LGBTQ customers seeking wedding-related items.” Velte expects “a litany of different lawsuits while the courts try to figure out where the lines are that we’re going to draw around expressive products and services.”

Dale Carpenter, another law professor, writes, “I read 303 Creative to hold that a vendor cannot be compelled by the government . . . to create customized and expressive products . . . where the vendor’s objection is to the message contained in the product itself, not to the identity or status of the customer.”

As applied to Velte’s example of the calligrapher, it seems like if the menu explicitly references the gay wedding, that clearly would fall under the Supreme Court’s decision. If the menu just mentions things like chicken parmesan, it probably would not fall under the ruling.

Free speech at stake

Last year I discussed some other difficult examples, including this one: If a Christian ordered a white cake from a Muslim baker, and told the baker “the whiteness represents God’s purity” and so reflects the image of the Christian God, would the State of Colorado want to force the Muslim to bake and sell that cake? I personally would include that example under the Supreme Court’s ruling, but the case hardly is obvious.

What about a cake ordered specifically to celebrate a gender transition that doesn’t have any writing but is blue with pink frosting? Is that sort of ambiguous symbolism enough to place the case under the Supreme Court’s decision? I don’t know.

Regardless, business owners cannot generally turn away people for being gay or black or Muslim or in any other ethnic, gender, or religious category. Of the small fraction of products that are customized and expressive, most of the relevant cases are clear cut. A baker who regularly makes birthday cakes would not, for example, be legally able to decline to bake a birthday cake for a gay person unless the cake explicitly mentioned the person’s sexual orientation. (A side-note: I’m not sure why anyone would want to do business with someone who harbors bigotries against them anyway.)

This case is not about whether you personally like Lorie Smith or her lawyers or approve of her ideology or business plans. What is at stake here is the principle of free speech. Do business owners have a right to decline to express views with which they disagree? I say yes. If you say no, it seems like you are opening wide the gate to government-compelled speech more broadly. That’s far more dangerous than anything Smith might manage.

Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.


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