Contrived cases make bad law, part 2

Why 303 Creative's reasoning was so dissatisfying

As I explained in my prior post, 303 Creative LLC v. Elenis was a contrived case. No same-sex couple had ever asked 303 Creative to make a wedding website. Although 303 Creative alleged it had received such a request, this request was later revealed to have been fake. Indeed, the plaintiff had never made a wedding website of any kind before filing suit.

303 Creative’s reasoning is curiously dissatisfying, and in my view, the contrived nature of the case is to blame.

The Supreme Court as anti-libertarian hero

Let me begin with some observations about the problem the Supreme Court faced in 303 Creative.

The question in 303 Creative was not whether, but instead when, the government should use nondiscrimination laws to force private organizations to act, associate, and speak contrary to their deepest-held beliefs.

One justification I’ve frequently heard for the result in 303 Creative is an essentially libertarian one. It goes like this: private organizations should be able to act, associate and speak according to their values without being trampled by nondiscrimination laws. Same-sex engaged couples should have no difficulty finding a website designer who would be eager to make a wedding website for them. As such, the government has no business forcing private organizations to violate their deepest-held beliefs.

Whatever the merits of this position, it is not the position of the Justices in the 303 Creative majority, and it is not the position of the Alliance Defending Freedom (ADF), the organization that represented the 303 Creative plaintiffs in the Supreme Court. To the contrary, both the Court and ADF support the idea, in appropriate cases, of applying nondiscrimination laws so as to compel private organization to associate and speak contrary to their values.

Two opinions released the day before 303 Creative’s issuance make that clear. First, in Students for Fair Admissions v. President and Fellows of Harvard College, the Supreme Court held that the race-conscious admissions policy of Harvard, a private university, violates federal nondiscrimination law.

Regardless of whether one agrees or disagrees with Harvard’s admissions policy or the SFFA decision, I think three points are clear:

• Harvard’s admissions policy reflects its deepest-held values. What could be a stronger reflection of a university’s values than its choices about which students to admit? Banning Harvard from using that policy is a paradigmatic case of applying nondiscrimination laws to prevent a private organization from following its values.

• Striking down Harvard’s admissions policy restricts Harvard’s freedom of association. After all, Harvard selects the students with which it will associate via its admissions policy.

• The Supreme Court’s decision will affect on-campus speech. The content of on-campus speech will depend on who is speaking. Indeed, one argument I have often heard in favor of abolishing race-conscious admissions policies is that eliminating the use of race in admissions will make campus life more anti-woke.

Second, in Groff v. DeJoy, the Supreme Court unanimously held that an employer is required to provide a religious accommodation unless the accommodation would impose a “substantial” burden on the employer’s business. The Court further held that “bias and hostility to a religious practice” is not a basis to deny a religious accommodation. As one would expect from an opinion that garnered nine votes, the Court did not apply its new standard to a controversial fact pattern. Nevertheless, it is easy to see how, under a broad interpretation of Groff, providing a religious accommodation could trench on an employer’s values.

Consider ADF’s amicus brief filed in Groff. ADF represented John Kluge, a schoolteacher whose religious beliefs prevented him from using what he referred to as “transgender names and pronouns.” Because his employer’s policy was for teachers to refer to transgender students according to their gender identity, Kluge sought the religious accommodation of being permitted to refer to students by their last names only. ADF’s amicus brief argued that Title VII required the employer to provide this accommodation. Although the employer was a public school, Title VII also applies to private employers, and I strongly suspect ADF would take the view that private employers are required to offer similar accommodations.

In that scenario, too, the application of a nondiscrimination law would require private employers to associate and speak contrary to their beliefs. For many private businesses and other organizations, treating transgender people according to their gender identity is a core value—a value as deeply-held as 303 Creative’s opposition to same-sex marriage. An employee who refuses to refer to transgender co-workers and customers in this manner would violate that core value. Coercing the employer, via Title VII, to offer that accommodation to an employee would not only infringe the employer’s freedom of association, but also the employer’s freedom of speech insofar as the employee utters last names and pronouns—i.e., speech—in the workplace in his capacity as an agent of the employer.

So what makes 303 Creative different from Harvard or the employer with the pronouns policy? 303 Creative argued that is constitutionally entitled to an exemption from nondiscrimination laws because the service it was providing was “expressive.” According to 303 Creative, a website designer organizes text and images in an aesthetically pleasing way, and therefore differs from, for instance, a caterer. And that, according to 303 Creative, was the reason 303 Creative was constitutionally entitled to an exemption from Colorado’s nondiscrimination law. At the oral argument, 303 Creative’s counsel explicitly conceded that coercing a caterer to provide food for a same-sex wedding, contrary to the caterer’s deepest-held beliefs, wouldn’t violate the caterer’s right to free speech:

JUSTICE KAVANAUGH: So, if you win this case, if you prevail here, you know, and the next case involves a caterer, at least your position here is that's different.

MS. WAGGONER: I won't be coming back with the caterer, but I will be coming back with perhaps a custom wedding cake or a cake --

JUSTICE KAVANAUGH: I understand that, but the --

MS. WAGGONER: -- that has a symbolic meaning to it.

JUSTICE KAVANAUGH: Okay. But the -- the caterer, the -- the list of things that you had on page 15 of the reply brief, at least ordinarily -- you had a caveat in there -- but ordinarily wouldn't -- wouldn't have the same right that your client here does, who's a website designer?

MS. WAGGONER: They wouldn't have a free speech right.

This is a pretty significant concession, because many of the cases that 303 Creative relied upon, such as Hurley (which upheld a First Amendment right to exclude gay people from a parade) and Dale (which upheld the Boy Scouts’ First Amendment right to exclude gay scouts), involved First Amendment claims of associational freedom. Nonetheless, 303 Creative expressly conceded that a caterer with strong philosophical objections to associating itself with a same-sex wedding couldn’t claim a First Amendment exception from nondiscrimination laws.

I interpret the Supreme Court’s decision to draw the same line as the plaintiff. The Court emphasized that websites are “expressive,” while acknowledging that outside of the context of “expressive” goods and services, states are free to apply their nondiscrimination laws: “States may protect gay persons, just as [they] can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment.” Outside the context of “expressive” goods or services, the Court didn’t question that the government may apply nondiscrimination laws to coerce private organizations to act contrary to their values. Indeed, that is exactly what the Supreme Court did to Harvard 24 hours earlier.

So to circle back, the question in 303 Creative was not whether, as a general matter, the government is authorized to use nondiscrimination laws to force private organizations to act contrary to their beliefs. All parties and all Justices in 303 Creative agreed that it could. Instead, the question in 303 Creative was whether the distinction between “expressive” and “non-expressive” goods and services demarcates the appropriate line between permissible and impermissible government coercion.

Does the Constitution really distinguish between cakes and egg rolls?

I am skeptical.

There is undoubtedly something to the view that the government shouldn’t be permitted to coerce expression. The Court raised the examples of the government requiring “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal.” These hypotheticals do seem bad.

Still, this does not necessarily mean that providers of “expressive” goods and services should be exempted from generally applicable nondiscrimination laws. First, in practice, plaintiffs treat anything aesthetically attractive as “expressive.” In Masterpiece Cakeshop, for example, the baker asserted that he could not be coerced into baking a cake because the cake was artistic and hence “expressive.”

Even when the goods and services include words, the words are often provided by the couple, and the business’s job is to transform those words into something aesthetically pleasing. In the Brush & Nib case from the Arizona Supreme Court, for instance, the plaintiffs were calligraphers who alleged they were required to engage in “expression” when they wrote wedding invitations.

I find it difficult to accept that baking a nice-looking cake, or writing down someone else’s wedding invitation, should be treated as the constitutional equivalent of forcing Jehovah’s Witnesses to recite the Pledge of Allegiance. Writing down “RSVP by June 30” in cursive handwriting is not the same thing as affirming one’s loyalty to the ideology of “RSVP by June 30.” OK, people with deep moral objections to same-sex marriage may subjectively take a contrary view, but we know that subjective views alone aren’t enough to avoid application of nondiscrimination laws. Even if a person subjectively believes that catering a gay wedding is “just as bad” as marching with a gay person in a parade, courts are willing to say that the first can be coerced and the second can’t, because objectively, there’s a difference between selling to a gay couple and marching with a gay couple. I’m not sure why we should dishonor subjective beliefs in that situation but honor the equally eccentric subjective belief that writing “RSVP by June 30” in cursive is like taking a loyalty oath.

Also, keep in mind that Colorado is merely seeking to bar discrimination—that is, refusals to sell the same good or service to a same-sex couple as would be sold to an opposite-sex couple. For example, in Masterpiece Cakeshop, Colorado argued that a cakeshop owner couldn’t refuse to bake a cake for a same-sex couple when the cakeshop owner would bake the identical cake for an opposite-sex couple. That takes care of the hypotheticals involving documentaries and murals, because a pro-evangelical film or mural is clearly not the same as a pro-atheism film or mural.

OK, figuring out whether two goods or services are really the “same” or “different” is tricky … is providing clip art of two grooms standing next to each other the “same,” or “different,” as providing clip art of a groom and a bride? But when the two goods or services really are the same—as in the two identical cakes—it becomes harder to say that the state is compelling “expression,” as opposed to compelling the business to transact with the same-sex couple.

Think of it this way. Many people have strong objections to forcing a recalcitrant baker to bake a cake for a same-sex couple, even if the baker would bake the equivalent cake for an opposite-sex couple. And that’s fine. But why do they hold those objections? I think an ordinary person, unburdened by a law degree, would believe that government shouldn’t force a baker to violate his conscience. But under the “expressive” / “nonexpressive” line, the dispositive issue isn’t that the baker’s conscience is being violated; it’s that the cake is an aesthetically attractive object, sort of like Michelangelo’s David. So even though the caterer’s labor requires just as much skill, and even though the caterer is spending just as many (probably more) hours than the baker, the baker wins and the caterer loses because cakes are more “expressive” than egg rolls.

Intuitively, that doesn’t seem right to me. And in controversial cases, when doctrinal lines don’t match intuitive lines, there’s something wrong with the doctrine.

We stipulate that we lose.

At a minimum, I hope I’ve convinced you that the issues in 303 Creative are difficult.

Unfortunately, there is not a lot of grappling with difficult issues in the 303 Creative opinion.

Because no gay couple ever requested that 303 Creative create a website, and because 303 Creative never created a wedding website for anyone, the record consisted primarily of a series of stipulations on the characteristics of the websites 303 Creative would, hypothetically, provide. Colorado stipulated, among other things, that the websites would be “expressive” and “customized.”

To the Court, these stipulations were game, set, and match. Here’s the Court’s reasoning, in a nutshell:

• It’s bad for the government to force people to parrot government-approved messages.

• Colorado stipulated that it’s forcing people to parrot government-approved messages.

Example excerpt:

As we have seen, the State has stipulated that Ms. Smith does not seek to sell an ordinary commercial good but intends to create “customized and tailored” speech for each couple. App. to Pet. for Cert. 181a, 187a. The State has stipulated that “[e]ach website 303 Creative designs and creates is an original, customized creation for each client.” Id., at 181a. The State has stipulated, too, that Ms. Smith’s wedding websites “will be expressive in nature, using text, graphics, and in some cases videos to celebrate and promote the couple’s wedding and unique love story.” Id., at 187a. As the case comes to us, then, Colorado seeks to compel just the sort of speech that it tacitly concedes lies beyond the reach of its powers.

Hmmph.

This is a dissatisfying way of resolving the case. Fundamentally, I don’t understand the significance of the “stipulations.” If Colorado hadn’t stipulated these things, would the case have come out differently?

To expand on that a bit … there are two ways of understanding the stipulations. First, one can interpret them, rather uncharitably, as stipulations that websites satisfy some legal “expressiveness” standard that implicates the First Amendment. If so, the decision is utterly trivial: the Court is saying that Colorado stipulated that applying its nondiscrimination law would violate the First Amendment, so it violates the First Amendment.

Second, one can interpret them as stipulations to obvious facts such as that websites have words and pictures on them. If so, this would imply that 303 Creative is a far-reaching ruling exempting anyone who provides a service involving words and pictures from nondiscrimination laws.

If there were actual facts in the record on what the hypothetical gay couple was actually asking 303 Creative to do, we might understand what “expressive,” in context, means. But there aren’t, so we don’t.

The majority’s back-and-forth with Justice Sotomayor illustrates the problem with relying on stipulations. Justice Sotomayor offers these hypotheticals:

A professional photographer is generally free to choose her subjects. She can make a living taking photos of flowers or celebrities. The State does not regulate that choice. If the photographer opens a portrait photography business to the public, however, the business may not deny to any person, because of race, sex, national origin, or other protected characteristic, the full and equal enjoyment of whatever services the business chooses to offer. That is so even though portrait photography services are customized and expressive. If the business offers school photos, it may not deny those services to multiracial children because the owner does not want to create any speech indicating that interracial couples are acceptable. If the business offers corporate headshots, it may not deny those services to women because the owner believes a woman’s place is in the home. And if the business offers passport photos, it may not deny those services to Mexican Americans because the owner opposes immigration from Mexico.

Reading these hypotheticals leaves one thirsty to know how the majority would distinguish them. Does the majority think that the business owners should win because freedom is great? Or that the business owners should lose because photographs are less expressive than websites? Or that the business owners should lose because racial discrimination is worse than sexual orientation discrimination?

We get the following answer:

Instead of addressing the parties’ stipulations about the case actually before us, the dissent spends much of its time adrift on a sea of hypotheticals about photographers, stationers, and others, asking if they too provide expressive services covered by the First Amendment. Post, at 27–29, 31–32, 37. But those cases are not this case. Doubtless, determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions. But this case presents no complication of that kind. The parties have stipulated that Ms. Smith seeks to engage in expressive activity. And the Tenth Circuit has recognized her services involve “pure speech.” See supra, at 6, 9. Nothing the dissent says can alter this—nor can it displace the First Amendment protections that follow.

Not helpful.

A photograph is an image, just like a website contains a series of images. Does that make the photograph “expressive”? If yes, then the photographer in Justice Sotomayor’s would win under the majority’s reasoning. If not, then why is it different from the website? Is the sole difference that Colorado blundered by stipulating away its case? I have no idea; all we know from the Court is that “those cases are not this case” because of Colorado’s stipulations. And again, the only reason we’re in stipulation world is that there’s no gay couple who ever sought 303 Creative’s services.

Perhaps the real answer is that the Court shouldn’t answer those hypothetical cases until they arise. Why unnecessarily step into social controversies? But it’s sort of hard to take that position when … 303 Creative is also a hypothetical case. Like, can the Court really say, “a hypothetical gay couple can’t compel a designer to create a hypothetical same-sex wedding website, but we’re not going to consider hypotheticals involving photographers because we don’t like going into hypotheticals”?

Eliminating ideas is bad!

In addition to relying on the stipulations, there’s lots of soaring rhetoric in the majority opinion about how it’s bad for the government to eliminate ideas. The Court lectures us that “the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong.” The dissent, we are told, would allow “a government to coerce an individual to speak contrary to her beliefs on a significant issue of personal conviction, all in order to eliminate ideas that differ from its own.” Sounds like North Korea!

This prose rubs me the wrong way. There are admirers of free speech on both sides of the house and I don’t think that the dissenters are trying to allow the government to “eliminate ideas that differ from its own.” (The dissent’s position wouldn’t allow a gay-owned website designer to discriminate against opposite-sex couples, either. Does this mean the government is trying to eliminate ideas about opposite-sex marriage, too?).

And again, I think this language wouldn’t be possible if this was a bona fide case or controversy. Think again of the cake case. Colorado’s position was that a baker asked to re-bake a cake he already baked should be treated the same way, under the First Amendment, as a baker asked to sell a cake he already baked or a caterer asked to cater a wedding. The plaintiff said, no, re-baking the cake is “expressive” and the other two are not. Whatever. But regardless of how one comes out on this issue, I think it’s silly to say that Colorado’s position on this delicate issue would “eliminate ideas” whereas adopting the baker’s position would allow us to “think for ourselves.” The lines are so fine that the heated rhetoric doesn’t work.

Here, though, all we had was stipulations. Again, the Court essentially interpreted the stipulations, perhaps uncharitably, as concessions by Colorado that it wanted to force 303 Creative to recite a pro-gay marriage loyalty oath. Armed with those concessions, the Court felt at liberty to decide the case via platitudes about how it’s bad to destroy freedom.

Stewart and Mike again?

Two more points on the contrived nature of the case.

First: I’d like to circle back to “Stewart” and “Mike.” As I explained in my prior post, the plaintiffs relied on the request for a same-sex wedding website from “Stewart” that turned out to be fake. ADF contends that it relied on this request in good faith and didn’t know it was false.

Fine. But why didn’t ADF know it was false? In ordinary circumstances, when a lawyer represents a client that gets a threat, the lawyer investigates the threat. If there’s a whistleblower, for instance, the lawyer investigates the accusations and assesses litigation risk. Sometimes clients don’t want the whistleblower to know about the investigation, in which case the lawyer is extra careful to hide his tracks.

Here, though, ADF didn’t investigate this alleged mortal threat to its client’s freedom at all. Why? It didn’t want to. Its client wasn’t actually scared of “Stewart” and “Mike” (hence no investigation), but it wanted to look scared of “Stewart” and “Mike” (hence touting them in the briefs), because the purpose of the litigation was to obtain good precedent rather than ward off any real-world threat to 303 Creative’s freedom. And because of these strange incentives, we are now in this awkward situation in which a landmark Supreme Court case may or may not have been influenced by a prank.

Second: One issue looming in the background was whether 303 Creative would really be violating state law if it refused to create websites for same-sex couples. In my opinion, there’s zero chance that a Colorado court would force “an unwilling Muslim movie director to make a film with a Zionist message,” to use one of the majority’s examples. Either the court would say that the filmmaker isn’t a public accommodation, or the court would say that the filmmaker isn’t discriminating. We have no idea what 303 Creative’s hypothetical websites would look like, but if, as promised, they would be artistic extravaganzas, perhaps 303 Creative would not violate the statute for similar reasons.

If this were a real case, in which 303 Creative’s livelihood was at risk, 303 Creative would fight this issue tooth and nail. Litigants who face actual stakes tend to object to stipulating things like “Tuesday is the day after Monday.” Here, though 303 Creative acknowledged it would violate state law—otherwise it wouldn’t have standing. This concession didn’t materially harm it because the chances of facing an actual enforcement action following denial of service from an actual gay couple were so slim. Meanwhile, Colorado was happy to accept this broad interpretation of state law because, well, it enforces the law. Especially in a case with such a limited factual record, a regulator isn’t going to concede away its own jurisdiction.

The result was essentially collusive litigation on the breadth of Colorado’s law, with no Colorado court ever opining on the application of Colorado’s nondiscrimination law to purportedly custom-made artwork. This tactic was successful—the plaintiff got its Supreme Court win—but it is disquieting.

Same-sex marriage prevails

I would like to close on a note of optimism. Taking a step back, 303 Creative symbolizes the great success of the movement for same-sex marriage.

Whether it had standing or not, 303 Creative was a weak plaintiff. At the time the complaint was filed, no same-sex couple—not even Stewart and Mike—had requested a website. This created litigation risk—a court might have dismissed the case for lack of standing (as ultimately materialized in the district court). It also created a public-relations problem. Civil rights organizations always want compelling plaintiffs for their landmark cases. The designer of websites for clients such as roofing companies and dog breeders, who was so worried about a same-sex couple seeking a wedding website that it felt the need to file a preemptive lawsuit, is not exactly Rosa Parks.

Why was the plaintiff so weak? Occam’s Razor says that the organization couldn’t recruit a better plaintiff. While there are many thousands of wedding websites for same-sex couples, I’m not aware of a single real case in which a same-sex couple filed a complaint against a website designer for refusing service. And even expanding the net to website designers who haven’t been sued, the supply of designers willing to fight this issue is apparently low.

This shouldn’t be terribly surprising. Gallup reports that 71% of Americans, including 89% of Americans aged 18-29, support same-sex marriage. Perhaps this partially reflects a Shy Tory effect, but actual electoral data are striking too. Take a look at Nevada’s 2020 referendum to overturn its same-sex marriage ban. Other than a few counties with less than 5,000 voters, the most pro-Trump county was Elko County, nestled in between Idaho and Utah. It gave Trump 76.21% of the vote.

Gay marriage lost in Elko County—but barely. “No” on same-sex marriage prevailed with 53.63% of the vote. After three years of generational turnover, it’s quite possible that a majority of Elko County residents today supports same-sex marriage. Same-sex marriage has majority support in some of the most conservative regions of the United States.

I think it’s fair to say that everyone, or at least almost everyone, who voted for same-sex marriage would gladly transact with a same-sex couple. Meanwhile, plenty of people who oppose same-sex marriage would still gladly sell goods or services, even aesthetically attractive ones, for a same-sex wedding. There aren’t plaintiffs lining up to bring these suits, which is why 303 Creative got the nod.

It is easy to be annoyed by a contrived case, but only up to a point. Ultimately, there has been much less post-Obergefell legal strife between same-sex couples and opponents of same-sex marriage than I expected. A controversial Supreme Court case will not get in the way of that harmony.

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This is the 25th post on my newsletter. Thank you for reading, and thanks to those who have corresponded with me! I’ve really enjoyed writing it so far.