Speakers: John Walsh, Felicia Ellsworth and Eric Olson
John Walsh: Welcome to In The Public Interest, a podcast from WilmerHale. I’m John Walsh.
Felicia Ellsworth: And I’m Felicia Ellsworth. John and I are partners at WilmerHale an international law firm that works at the intersection of government, technology and business.
Walsh: Today’s episode is the latest installment of our new Supreme Court miniseries, where we dive into the most hotly contested decisions coming out of the court this term and discuss the implications of several of the court’s rulings going forward. In this episode, we’ll be discussing the court’s recent decision in 303 Creative against Elenis, which concerns whether a Christian website designer has a First Amendment right to refuse to design wedding websites for same sex couples. Joining me to discuss his views on this case and its significance is Eric Olson, the former Solicitor General for the State of Colorado who specializes in trial and appellate work and who argued the case in front of the United States Supreme Court. Eric, thanks so much for joining us on this episode of our Supreme Court miniseries.
Eric Olson: Thank you, John. Really nice to be here and look forward to today’s conversation.
Walsh: Why don’t we just dive into the background of the case first. Can you give us just a high level overview of the facts?
Olson: Sure, Colorado, like most states, has a civil rights law that says if you choose to open your business to the public, you can’t turn customers away from that business because of certain characteristics such as race, sexual orientation or gender. A website designer in Colorado claimed that she wanted to expand her business to make customized websites for weddings, but she wanted to turn same-sex customers away because she didn’t believe that same sex marriage was consistent with her religious beliefs. And instead of waiting for an actual customer, she sued first and asked for a categorical exception for the law not to apply to her because of her religious beliefs.
Walsh: And what is the core legal issue that the court accepted for decision?
Olson: The basic question is whether a business can avoid complying with civil rights laws by claiming they sell expressive services and therefore the First Amendment prevents the civil rights laws from governing their conduct. Below they claimed both parts of the First Amendment, a free speech claim and a free exercise claim a religious claim. The court narrowed the question to only be the free speech claim, which includes all different kinds of religious objections and objections that aren’t religiously based. So they took the broadest possible question.
Walsh: Would it be fair to say that even though the Supreme Court did not make a free exercise of religion rule in 303 Creative that the breadth of what they did with the First Amendment essentially covers that kind of concern?
Olson: Correct. The free speech claim covers all of the free exercise claims in addition to claims by people who don’t want to speak because of bigoted or non-religious based reasons, but any kind of speech is covered by the courts rule, not just religious speech.
Walsh: So let’s go back to a time before this particular case even began. This isn’t actually the first time that the Supreme Court has heard a case about Colorado businesses claiming a First Amendment right to discriminate against same sex couples. What’s the history here?
Olson: Well, in the Masterpiece case, an actual couple went to an actual store and said they would like a cake for their wedding. The cake maker said he would not make a wedding cake for a same-sex wedding, and so he denied them service. The Colorado Civil Rights Commission does what it normally does, which is enforce our civil rights laws, and that case made it to the Supreme Court. The court, in a narrow opinion by Justice Kennedy, held that Colorado had not treated the religious views of the baker with sufficient respect and so vacated the case on that grounds, but did not answer the key question of where there’s a First Amendment and a civil rights law conflict, which governs?
Walsh: So why did the court hesitate to decide those issues in Masterpiece Cake Shop, but then grapple with them this time?
Olson: Because we have two new members of the Court who are very politically motivated to expand religious protections and are more willing to resolve questions themselves rather than leave it to the democratic process.
Walsh: So coming back to the 303 Creative case itself, what was the decision, what did the majority decide?
Olson: Well, it was a six, three decision by Justice Gorsuch that there was a First Amendment right to turn customers away. It looked at the issue through the lens of the website designer in this case and said they had a First Amendment right not to create a product for a particular customer, even though they would create that same product for a different customer because the product contained expressive elements. So it was a sweeping decision that overruled significant precedent without acknowledging it was doing so.
Walsh: Now you actually argued the case in front of the Supreme Court. After those arguments, did you come away surprised by the attitude of the justices?
Olson: No, unfortunately. I was disappointed and devastated by the opinion, but not surprised at all.. Justice Alito read a hypothetical straight from an amicus brief that wasn’t very challenging and then made some snide comments to Justice Kagan about her frequenting websites for people having affairs. Justice Barrett asked a question that dealt with some of the challenging issues. The lawyer for the other side gave the wrong answer to that question, and Justice Barrett had to rehabilitate her like you would a witness at trial to make sure she said the right thing. It was a really disappointing argument and after argument, not surprised at all by the decision.
Walsh: Justice Alito said during the oral argument, he quoted Justice Kennedy’s statement in the same sex marriage a few years ago, Obergefell, that many who deemed same sex marriage to be wrong reached that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. And he left it at that. Had Justice Kennedy actually gone on to say more than that, though?
Olson: Yes, the very next sentence. And I tried to say this to Justice Alito at argument, but he cut me off. The second sentence talks about when those beliefs are given the imprimatur of the state. In other words, the state says that it’s OK to discriminate based on those beliefs against members of the public. That is, when the constitutional violation occurs and that goes too far. All of us can hold the beliefs we want in our private space, but when we seek to act in the public sphere, on those beliefs where we deny services to people because of who they are, that’s what Justice Kennedy was saying you cannot do. Justice Alito was using Justice Kennedy’s quote exactly backwards, and the only way he was able to do that was by ignoring the second half of the quote.
Walsh: Justice Sotomayor issued a lengthy dissent to the court’s ruling and part of it she actually read from the bench, which I think many observers thought was a display of strong disapproval. What stood out to you from her opinion?
Olson: She correctly identified what a strong break from tradition and history the majority’s opinion was, and put the lie to the notion that they are continuing historical tradition. She showed that this was a sweeping change and we will see lots of mischief in the lower courts as people use this opinion to deny services, to treat people unequally in the public sphere going forward. So both her recognition that the majority’s history had it backwards and the mischief that could be caused, really stood out to me.
Walsh: The majority opinion spoke in fairly sweeping terms and did not limit the First Amendment right that they were articulating to LGBT individuals, but spoke more broadly to any First Amendment view. What’s the implication of that for the future of anti-discrimination laws in the United States?
Olson: Well, I think it goes far beyond just anti-discrimination laws. Read broadly, the Supreme Court said there’s a First Amendment right to be free of government regulation, even for conduct selling a product to somebody and it’s not limited to same sex couples or weddings or particular kinds of businesses. The language you use is quote those whose services involve speech now have an argument that they can refuse certain customers. It does not today mean that you have a constitutional right to discriminate against people on the basis of race, for example. But there’s now a constitutional right not to serve a member of a protected class, and it moves the frame of the discussion as to what is allowed and what is not allowed in our country and those kinds of arguments about race, about disability, about gender are coming because of this opinion, even though this opinion itself does not address it and as Justice Sotomayor recognizes one of the main harms that the laws here are trying to prevent is the dignitary harm of being told you don’t belong, we don’t serve people like you, and that harm will occur as people test the boundaries.
Walsh: So let’s talk a little bit about where that line of speech or expressive services falls. Did the court spend any time talking about how that gets defined going forward?
Olson: No, they did not. They just use generic language about services involving speech. Subway calls the people that make your sandwiches, sandwich artists. Unlikely they qualify, but you can certainly say artists writ large would fall within this exception. So there’s a lot of uncertainty in no real principles to help us as a country understand what this decision means going forward.
Walsh: I’m going to give you a hypothetical just to explore that a little bit. Let’s say that friends of a same sex couple want to put up a big billboard announcement congratulating the couple and celebrating their wedding, and they themselves actually designed the announcement to go on to billboard, but the billboard company, which has its name on every billboard, refuses to do that, saying that by putting that announcement on their billboard that would be suggesting they endorsed the same sex wedding and they don’t. Under this opinion, which way would that case go?
Olson: First, under this opinion, that business would have the right to say no. Putting billboards up is expressive, and they have a First Amendment right now to say we’re not going to serve certain messages which we find distasteful. Secondly, I think this hypothetical shows some of the real challenges that we have where there’s lots of rules and regulations involving billboards. The Supreme Court hears a case started every other year about public signs and there's lots of interest in regulation. If again read to us most broadly, since we creative says because it’s expressive, you can’t regulate me. It throws this whole system into significant uncertainty and importantly, moves the decision about who decides away from city councils and democratically elected legislatures to courts. And I think that’s a terrible thing for our democracy.
Walsh: In light of this decision, what would you say the next frontier in the fight for LGBTQ rights is? Where is this headed?
Olson: I think there’s three main areas of focus that we’ll see. Unfortunately first, that the right to same sex marriage is under attack. I don’t think this court, because they’re so susceptible to public pressure that they’re not going to outright reverse Obergefell, but what they will do is allow for lots of sand in the gears for people to meaningfully access that equal right to marriage. And so it will empower county clerks to say I don’t want to be involved with providing this service to this couple. There will be other ways in which accessing the [inaudible] will be more difficult. Second, I think the court will say that there are statutory fixes available here, but when they say that they don’t recognize that this court at the same time has significantly diminished the ability of minorities to fully participate in the democracy in this country by allowing for much more restrictive voting regimes and at the end of the day, this case was about the court invalidating a popularly elected law on the grounds of the Constitution, so that’s not a real answer. And then I think the third thing that we’ll see is this will embolden states to be increasingly aggressive in punishing minorities of all kinds depending on the political winds of that state. I think we see it recently in the case out of Tennessee, where the 6th Circuit upheld Tennessee’s ban on gender affirming care for minors. Again, it’s not a categorical change across the whole landscape, but what it does do is create the opportunity for these individual cases to arise and that’s a feature I think of the way in which the court approaches these issues because they don’t take responsibility for over ruling the case for at large, but what they do do is create a landscape of litigation that singles out people for being different, which is exactly the opposite of what our country stands for.
Walsh: So as we bring this episode to a close, do you have any final comments or thoughts about what the path forward here is? What’s the step?
Olson: Three things come to mind. First and foremost, it is an, unfortunately a vivid reminder that our democracy is a work in progress, and we cannot rest in terms of ensuring that America lives up to the promise of all of its residents. And so stay vigilant, stay engaged, keep working. Second is because there will be this onset of litigation, what happens in the courts really matters, so particularly those who are lawyers or professionals working in the legal industry use those skills to help bring cases, defend cases where the principles that Justice Sotomayor talks about in her dissent are at the fore and we are working to create an America. That is better than the America we had yesterday. And the third thing I think is to recognize that the court are political actors and that we can use political pressure to rein in some of their excesses, but recognize and talk to your family, talk to your friends that the Supreme Court, just like the rest of us, are people, and we should not necessarily give them the last word just because they’re listed in the Constitution. We can hold them accountable just like we hold our President and our legislature accountable.
Walsh: Thank you, Eric. It’s wonderful to have a chance to talk to you, to explore the scope of the Supreme Court’s 303 Creative decision and its implications for the future. I’m sure we’ll be talking again, perhaps as some of this future litigation actually happens. So we look forward to that conversation and thank you for sharing your perspective today.
Olson: Thanks very much for having me on, John, and I appreciate the discussion, even if it’s a disappointing decision. The path ahead is long and there’s a lot of hard work ahead.
