For those who are increasingly frustrated by the fact that the Supreme Court is in possession of a conservative supermajority hellbent on expanding the rights of some plaintiffs (Christians, businesses, and gun owners, for example) while chiseling away the rights of others (Indian tribes, pregnant people, and public school students, for example), oral arguments have been maddening. Specifically, the way in which the court’s conservatives ignore and diminish the latter groups’ rights and interests in favor of the former groups’ is getting ever harder to listen to. If you persistently tell only one side of the story with empathy and grace, that story tends to carry the day.
Whether it was Justice Samuel Alito dissolving women’s economic and health interests into a pile of powder in Dobbs, or Justice Neil Gorsuch forgetting about the nonreligious student athletes in the “praying coach” case last term, the secret sauce here is to make the actual names and actual faces and actual suffering of the parties in any case about competing rights as small as possible, because then it is easier to rule against them and act like the consequences will be minimal.
In 303 Creative v. Elenis, a case testing whether the free speech rights of a web designer who wants to withhold her services from gay couples is in violation of that state’s public accommodations law, the conservative justices go one better: They completely vaporize the interests of same-sex couples seeking wedding services altogether. After all, as professor Hila Keren reminded us on this week’s Amicus podcast, there are no suffering parties on the other side of this appeal. There are no names and faces of couples refused services and forced to endure the humiliation of being told that their marriage is in fact “false” (the word used by Alliance Defending Freedom’s lawyer at argument). This case has no Charlie Craig and no Dave Mullins, the couple denied services in front of a horrified parent in a cake shop. There is only one face in this case—Lorie Smith, the web designer who has never made a wedding website for anyone, much less withheld a proposed wedding website from anyone due to their sexuality. (She just already knows that she will want to do that. Really!)
The result of this framing, which is certainly intentional on the part of Lorie Smith’s legal representation, is that we have no names, no faces, no pressing dignitary interests to bolster the state of Colorado’s compelling interest in fighting anti-gay discrimination. There is no trial record and there are no facts, and instead there is just a whole lot of spitballing about things that could happen someday in a comedic civil-rights-free galaxy far, far away. And what rushes in to fill the vacuum is a host of increasingly deranged hypotheticals, and also what now passes for high comedy at the Supreme Court. Let me say it again: It is one thing to diminish the interests and the pain of the parties you don’t care about in Hobby Lobby, in gun cases, in COVID cases. It’s something rather different to make fun of them.
Among some of the one-liners you may have missed, were you not tuned in to the arguments:
• Justice Samuel Alito joking that Justice Elena Kagan might be more familiar than he is with the website AshleyMadison.com, in a hypothetical about professional photographers. Ashley Madison, of course, holds itself out as a meeting place for customers seeking to have extramarital affairs. Alito opened with, “JDate … is a dating service, I gather, for Jewish people … Maybe Justice Kagan will also be familiar with the next website I’m going to mention, AshleyMadison.com …” “I’m not suggesting,” Alito chuckled. “She knows a lot of things.”
• Alito responding to a Ketanji Brown Jackson hypothetical about an all-white Christmas photography package (asking whether it would be discriminatory, which it would be) with his own hypothetical, bizarrely about a Black Santa at the mall who is faced somehow with a child dressed up in a KKK outfit. Alito is trying to probe whether Black Santa should not have to be photographed with the KKK kid: Haha. “If there is a Black Santa at the other end of the mall and he doesn’t want to have his picture taken with a child who is dressed up in a Ku Klux Klan outfit, Black Santa has to do that?” he asked. The spectators laughed uneasily as Alito joked: “You do see a lot of Black children in Ku Klux Klan outfits, right? All the time.” See, if everyone’s dignity and humiliation is hilarious, then nobody’s is serious. Except Lorie Smith’s, apparently.
• Kristen Waggoner of the Alliance Defending Freedom, representing the website designer, responded to the hypothetical from Jackson about an all-white Santa photography package for Christmas by saying that “there is a direct overlap in the musical of Hamilton,” because “in that case, we know they’re expressing a preference for who they are hiring because of race.” Jackson, at least, didn’t let her finish the analogy.
• Justice Gorsuch pressing Colorado’s Solicitor General Eric Olson to concede that the state of Colorado had forced Jack Phillips, the Christian baker in Masterpiece Cakeshop who refused services to same-sex couples, to undergo a state-mandated “reeducation training program.” Gorsuch asked, “Mr. Phillips did go through a reeducation training program … did he not?” Olson: “It was not a reeducation program … it was a process to make sure he was familiar with Colorado law.” Gorsuch: “Someone might be excused for calling that a reeducation program.” It was not, in fact, a reeducation program, but this is yet another notch in Gorsuch’s project to deride all of government as an endless string of soulless Orwellian bureaucrats intent on brainwashing innocents.
There is a difference, albeit a subtle one, between erasing one class of people while reifying another, and mocking the entire project of balancing genuine, and competing, interests. It was the latter that happened today at the court. And what we should realize is that it becomes easier to make this move if you can freestyle your way through wholly theoretical cases. You can just keep insisting that the only victim in this dispute—a dispute that was reverse engineered to have only one victim—is Lorie Smith.
But when you start lobbing around references to “Hamilton” and “Black Santa” and “Ashley Madison” and the riotously funny prospect of small Black kids dressed up as Klansmen, you’re in wholly new territory. So today’s hearing at the highest court in the land was about levity and mockery, and all the trivial examples of imaginary harms that will never come to pass. This is not just erasure of LGBTQ interests; interests which the state has an important and established interest in protecting. This is about mocking the obvious implications of creating a carveout from antidiscrimination laws with fatuous slippery slopes and petty humor.
It’s bad enough that this is what passes for sober analysis at the court in this case—that is already its own mess. Instead of reflection on that point, we have to grapple with the fact that it comes from the selfsame jurists who see every critique of their own conduct as intolerable. These are the jurists who keep insisting that declining public confidence in the court is the public’s problem, mind you. Meanwhile, treating important civil rights cases with dignity is not that hard.
This is an appeal that—if it is decided for Smith, as it surely will be—will have material and painful impacts for gay people around the country, and vast implications for those seeking to discriminate on the basis of race, intermarriage, and, as Justice Sotomayor kept emphasizing at arguments, disability. Treating it as such would have taken no extra labor and no extra effort from Alito and Gorsuch and Waggoner. Were this merely about bad jokes and laughable hypotheticals, it would be one thing. That it’s also about recasting the concerns of the once-invisible victim as the now merely ridiculous? That’s what makes it a tragedy.
