Dissent Episode Four: The Right to Discriminate

Back in 2017, the Supreme Court heard oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case involving a cake shop owner who refused to create a wedding cake for a same-sex couple. In a 7-2 decision, the court found that the state had violated the cake maker’s religious objections. Now the court is considering another case out of Colorado that could expand the right to discriminate under the guise of free speech. In the fourth episode of Dissent, Jordan Smith and law professor Hila Keren discuss 303 Creative LLC v. Elenis, a challenge to the state’s Anti-Discrimination Act brought by Lorie Smith, a website designer seeking to refuse wedding design services to same-sex couples. Unlike Masterpiece Cakeshop, the 303 Creative case has no injured parties; it is a preemptive attempt to allow businesses to practice unfettered discrimination.

[Dissent theme music.]

Jordan Smith: I’m Jordan Smith, a senior reporter for The Intercept. Welcome to Dissent — an Intercepted miniseries about the Supreme Court.

There’s this organization called the Alliance Defending Freedom – or ADF for short. They’re a Christian-right advocacy group, working across the country to create legislation and case law to deny services to LGBTQ people and criminalize consensual sexual activity between adults. And they’ve landed a big case at the Supreme Court.

The ADF is representing Lorie Smith, a graphic designer from Colorado who claims the state is preventing her from developing wedding websites because of — wait for it! — an anti-discrimination law. 

To make their case, the ADF and Smith have developed a series of slick videos with epic music and drone shots over Colorado landmarks. 

Lorie Smith: As a Christian artist I was really excited to step into the wedding industry and use my artistic talents, except there’s a Colorado law that prevents me from continuing with my work and forces me to violate my beliefs and speak messages that I don’t agree with… I love working with everyone. For me, it’s never about the person that I’m working with. It’s always the message I’m being asked to promote… What I am asking the Supreme Court to weigh in on and to protect this fall is the right for all of us to be able to speak freely, whether your beliefs are the same as mine or different. 

JS: The case before the Supreme Court, 303 Creative LLC v. Elenis, is on its face, at least according to the ADF and Smith, about free speech. But my guest today argues that it’s not about that at all.

Hila Keren: There’s no legal limit to the idea of free speech but there are places to carry free speech. And part of what I think goes back to our Founders’ understanding of the reality of slavery and the 14th Amendment is that the marketplace is not the appropriate place for that because once we compromise access to the market, we are really cutting under this way of being in the world.

JS: That’s Hila Keren. She is the associate dean for research and a professor of law at Southwestern Law School in Los Angeles. She writes about the marketplace and the relationship between law and human emotions. 

And she argues that this case is really about weaponizing the marketplace under the guise of free speech and religious freedom and that there’s been no limitation placed on Smith’s speech. She’s actually been sharing her views all over the place. Hila joins me now to break down the case. 

Hila, welcome to Dissent. 

HK: Oh, thank you so much for inviting me.

JS: So, to start we need to do just a couple of things. First, would you lay out, briefly, the facts of this case, 303 Creative v. Elenis, including the Colorado law being challenged? 

HK: So in this case, a lady named Lorie Smith owns a business, which he runs with a company called 303 Creative, which gives the name of the case. What she’s interested in is an exemption from anti-discrimination laws on behalf of her free speech and religious liberty — although the religious liberty part of it was put on hold by the Supreme Court, because it only invited her to hear her free speech claims. 

And so the law in Colorado says that once you run a business and you’re open to the public, what the law calls public accommodation, then you have to serve everyone; you cannot discriminate against groups. In Colorado, like in many other states around the country, one reason you cannot discriminate against is sexual orientation. And it’s named specifically in the legislation, it was democratically added as a category that is protected in the state of Colorado, but in numerous other states. 

And despite this very explicit legislation, the business here insists on a right to discriminate. How would they have a right to discriminate? The argument is that the right to discriminate will or should arise — it never existed before — but should arise from the right to free speech. That business wants to start doing weddings. It is a business that designs websites and wants to embark on designing websites for wedding purposes. And in doing that, they really want to highlight a line that they will do this only for heterosexual couples, but not for same-sex couples. 

Now, the business, importantly, did not do it yet. And so they rushed to sue Colorado before Colorado did anything. And they claim that Colorado is going to be punitive, going to prosecute them, and therefore they are doing something called pre-enforcement litigation, taking a preemptive step to say: You can’t sue me if I ever start doing weddings!

So on behalf of free speech, theoretically wanting to say I will not serve same-sex couples in the context of creating web wedding websites for them. But that’s not all. On behalf of the same claim, I also want to be free to put a sign out there and I’m imagining the sign to be digital at this point because it designs website and has a website — but to declare, basically, that same-sex couples are not wanted for the wedding services that we are going to one day provide. 

This case went through the system in Colorado and lost, but purposely was taken to the Supreme Court. And that’s an interesting point, the Supreme Court picked it up because the Supreme Court does not have to discuss that. And that question some of us thought was already decided in the past. But the Supreme Court limited the debate to the question of free speech.

And the whole litigation, it’s a lot of effort; it is part of legal battles around the entire country. So it’s not just Colorado, it’s not just this business; and the point is to argue we should be exempt from anti-discrimination laws, and in their language, not to be compelled to speak. And I’m saying “in their language,” because some of us may struggle to see where is the compelled speech in this scenario.

JS: That was a nice opening summary because we’re going to get to every piece of that — at least I hope we will. 

But I guess we should back up just a bit here to talk about that previous case, Masterpiece Cakeshop v. Colorado Civil Rights Commission. Can you tell us a little bit about that case, and how it gets us to 303 Creative? And I guess, you’ve already hinted at this, but critically, what’s different about this case versus Masterpiece Cakeshop?

HK: This is another incorporated company business, commercial, this time it also [has] a storefront, that sells our cakes and other baked goods; similar to how the owner of the website designer refuses to serve same-sex — refused, I should say, to serve same-sex couples. 

There is a huge difference, though, between the cases. And this is that [there] baker[s] for real refused to serve real people. Their names are David and Charlie. And they were literally refused, very harmed, their photographs were all over the media. One of the mothers was with them. So there was a big, humane story which I find crucial to our understanding of what’s going on right now because at least people could have viewed both sides of this debate. And the party that is getting harmed for those discrimination was there to speak, to have a photograph, to have some sympathy and to have their story appear during the litigation. 

In Masterpiece, the Court really recognized the problem of stigmatizing the LGBTQ community and creating some undermining of the recognition of the right to marry for same-sex couples that was achieved in Obergefell in 2015, so several years prior, and the Court really said that gay persons and gay couples are social outcasts. And with that sympathy said that they were marked for such a long time as inferior in dignity.

So part of the analysis of the Court that existed in Masterpiece was: No you can’t do this because this is a certain compromise — actually, a big compromise of the dignity and self-worth of not only the couple that you hurt, Mr. Baker — David and Charlie — but the Court talked about community-based stigma, stigma that will be created if we’re going to allow businesses to simply rule out categories and say they’re not wanted there. 

So the Court decided not to decide in an interesting way. Because of that reasoning, the Court emphasized: We’re not going to allow businesses to discriminate and be released from requirements of Colorado to not discriminate and exempt them from any law. However, the Court really reprimanded Colorado’s Committee of Civil Rights for not treating the baker and his sincere beliefs with more respect. 

So respect was sort of the skeleton of this decision. And the Court said: In this case, we’re not going to protect the Committee, but not because we’re giving a wide exemption, but because you had to treat better the baker. 

In what sense did they not treat better the baker? In the sense that several people talking on the Committee opined that this, the sincere religious beliefs, are pretext to discrimination. It got the interpretation of the Supreme Court as possible disbelief of the religious claim, and that was isolated as inappropriate in this particular case. 

Why is it important to this litigation that we are now talking about? Because there were real facts. There was a record of a meeting; there was a citation from a person on the Committee that opined about the baker; and there were David and Charlie. And we can kind of try to do what we always do in law, balance between the human beings at play. And because we’re trying to balance between the human beings in play, there was this kind of fine line in Masterpiece where, well, you have to respect the community of LGBTQ people, and we’re not exempting you. But you have to also award respect to the baker, in that sense. 

So the Court was trying to balance rights and to see the whole picture on a rich factual pattern that is totally, and harmfully, missing in the situation that we are right now talking about in the case of 303 Creative.

JS: Yeah. I wonder if, also, critical to understanding what is going on here is to understanding what public accommodations law is. Can you explain broadly the contours of what we’re talking about when we’re talking about public accommodations law, and about protected classes, people that we’re trying to protect from discrimination? Broadly, or however you’d like to talk about it.

HK: We start from slavery historically, and from the 14th Amendment and the realization that it’s not enough to release people from their status as slaves, but rather crucial to their equality and joining society on different terms is their participation in the market. 

So the 14th Amendment is talking directly about the marketplace and demanding equal rights in the ability to make contracts. And I think that this is what’s at stake here. Because in order to purchase a good, anything I need, the cake from Masterpiece. And in order to actually get the service of website design from the provider in 303 Creative, we need a contract, right? I need the ability to make a contract. 

And when someone is saying: I am not going to make a contract with you because of who you are — not because you don’t have money, not because you entered my store with no t-shirt on, but because there’s something about who you are that I object [to] — that was forbidden from the beginning with roots going back to slavery. 

With time and during the ’60s, the principle was enlarged into a lot of subordinated groups, not only people who were slaves must be treated equally in the marketplace if we have any serious claim that this society is equal. Otherwise, if some people can make contracts, and some people cannot make contracts, if some people can buy houses but others cannot buy houses, then how are we going to just run this society?

And public accommodation law is really circling the demands of equality around businesses open to the public. So if you’re saying: I am open to serve everyone, then you must actually serve everyone. 

Now states created their own version for that. And states differ in what they call public accommodation, and many names, for example, specifically online businesses. So many states moved with time and added online businesses to that list. Because imagine — and after COVID, I cannot imagine that — 

JS: [Laughs.]

HK: — but imagine that Amazon would not serve a group in the population! That matters, even though they are not literally physically open to the public. 

So there is a variety between states regarding what counts as a public accommodation. But what matters to our case, and I want to point it out now, is that there was an agreement between the parties that was stipulated, and they could not argue about it — although the judges tried to argue — but that this business, the website design business, is public accommodations.

JS: That’s exactly what I was gonna say it was. My next question was: Yes, she stipulated this — 303 Creative, my website design business — is a public accommodation.

HK: Yeah. Now to go to the protected groups: That, with time, also was updated, and there is variety around the country. So some states only say you can discriminate based on race and sex and religion, for example. And some say you can’t discriminate based on gender identity, sexual orientation. We have the same principle in the different [states] regarding disability. We have a long — increasingly long — kind of a list. 

In a few states, the most recent addition is political affiliation.

JS: Yeah. So let’s come back to this whole thing about the stipulation because Lorie Smith, the owner of 303 Creative, has stipulated that her website business is a public accommodation. So, theoretically, shingles out there for all comers. Well, if she is saying: Yes, I am a public accommodation. What is she asking for? 

HK: She is asking for a right to discriminate, despite the law. 

She doesn’t call it “discriminate,” but a right to refuse to serve same-sex couples if they will come — and it’s an if, because that never happened — and ask her to design a website for them.

And during the hearing at the Supreme Court, it was interesting, because there were a lot of questions going at: But what if it will be exactly the same website? What if it is Harry and Steve, and Harry and Megan, and Harry and Steve are now getting married? And they come and they say: Well, we want exactly the same website you created for Harry and Megan, would you serve them? 

And the claim is: I cannot be compelled to give my expressive powers in designing websites to something that I disagree with. 

So literally, this is a request for exemptions from anti-discrimination laws, on behalf of free speech, for religious reasons, against same-sex couples right now.

JS: Why [would] one might stipulate to being a public accommodation? And maybe it has to do with opening this door wide.

HK: I want people to understand how this is not really a personal, individual dispute. Rather, what’s going on here is a really big legal campaign around the country, carried out with a very high budget, lots of legal talents, a lot of investment, and led by the largest conservative advocacy group called The Alliance Defending Freedom, or sometimes we call them the ADF. 

The Alliance Defending Freedom, in this particular kind of battle, they’re not defending anyone, they’re actually attacking. They have developed this legal strategy that is pretty sophisticated in which they went around the country — and deliberately around the country, in a variety of states, eight states so far, in Arizona, Kentucky, Minnesota, Wisconsin, Ohio, Colorado, Virginia, and New York, so they spread the battle — and picked people who are doing something somewhat expressive in the wedding industry, some of them photographers, some of them producers of videos, some of them florists, baker[s], we mentioned — a variety of those — and took states that are a combination of difficult states for them to win, like Colorado, and easier states for them to win, more conservative states, like Kentucky and Arizona, but deliberately. 

Why did they go also to the states that are difficult for them? Not because they like the challenge, but because they were hoping to get the issue to this Supreme Court. How do you get issues to the Supreme Court? You create — or you hope for, but here they proactively created — this agreement between circuits. So it all started in eight different states and got to four different circuits: the 6th, 8th, the 10th, and the 2nd. 

And this created a disagreement between the circuits. So for example, in the case of Colorado, the 10th Circuit said: No, you cannot discriminate. 

But the 8th Circuit in the case coming from Minnesota said: Yes, you can discriminate on behalf of free speech, at least in a temporary injunction that they have awarded. 

So that actually helped the Supreme Court to pick the case. But the strategy here is wider. And this goes back to why conceding that it’s a public accommodation because the whole point is to allow as many businesses as possible — and not as few businesses as possible — to actually make those statements. Because the purpose here is to use the marketplace as a platform to put signs out: Same-sex couples are not legitimate in some versions, and therefore I so object to the realness of their wedding and marriage that I object to serve them.

And so the broader it is, the more successful this political conservative battle is. So for that purpose, it’s really important to broaden it and to include public accommodations.

JS: That brings us to some of the arguments which, throughout them, there were a lot of hypotheticals, some rather cringy, and analogies, some of which were quite odd. And frankly, a lot of them, I think, missed the mark, by not implicating a protected class, for example, or even a public accommodation [laughs], like Kristen Waggoner, the lawyer representing 303 Creative bringing up the musical, Hamilton.

HK: [Laughs.]

JS: And how unless you vindicate her client’s rights here, that somehow Lin Manuel Miranda wouldn’t have been able to cast his show the way he did. 

[Musical clip from Hamilton: “The ten-dollar Founding Father without a father, got a lot farther by working a lot harder…”]

JS: OK … Miranda isn’t a public accommodation, and I don’t get how his casting would be an issue, even if he was. So there’s that. 

And then there was also Justice Samuel Alito’s incredibly cringy Back Santa and kids in KKK robes hypothetical, which I think that if people have heard anything about the oral arguments in this case, that might be the thing that they heard about. Let’s listen to a bit of that.

Justice Samuel Alito: […] Justice Jackson’s example of the — the Santa in the mall who doesn’t want his picture taken with Black children.

So, if there’s a — a Black Santa at the other end of the mall and he doesn’t want to have his picture taken with a child who’s dressed up in a Ku Klux Klan outfit, that — that Black Santa has to do that?

Eric R. Olson: No, because Ku Klux Klan outfits are not protected characteristics under public accommodation laws.

JS: Can you talk about why these hypotheticals and analogies just … fail, and how they obscure what’s really at stake here? 

HK: This question alone covers almost everything that is wrong with this case. The judges on both sides, liberals and conservatives, had to use hypotheticals because they didn’t have a case. If you have a real case, you can talk about the facts, but there were no facts. And during this hearing, the oral hearing arguments, there were repeated references to the lack of fact[s]. It was astonishing! 

SA: Well, you should understand what your statute means. So suppose a website designer says, I’m offering my services, but I’m in a lot of demand for my services. And I reserve the right to decide who I will provide a website for and who I will not. Is that a public accommodation, then?

EO: If that’s the only factor then yes, but it can make decisions about who to supply that aren’t based on protected characteristics and choose its clientele just fine. What it can’t do is say I reserve the right to refuse service which means in practice, I will not serve black people

Justice Ketanji Brown Jackson: And isn’t part of the problem here in terms of trying to answer Justice Alito’s various hypotheticals that were presented with a record of stipulated facts and that the opposing — your friend on the other side actually stipulated to the application of the statute?

So it’s really hard for us to know and figure out and determine in this context, how the statute would actually apply, because we don’t really have a real record on that — on that score.

EO: That’s correct.

HK: The fact that there were no facts invited those hypotheticals, made them necessary, because the justices on both sides were trying to figure out: What exactly are the limits of what you’re saying here? Can we do this? Can we do that? And they came up with a lot. 

So that’s one point. But the second point that I’m so happy you emphasized [is] the role of Justice Alito in that, because a lot of the Hamilton, Santa Clause, and all of those examples really come from a line that he and the lawyer wrote for the ADF, Ms. Waggoner, were trying to lead, which is a very problematic line that I want to pull out from the hypotheticals because the hypotheticals are so confusing, that actually you lose sight of what’s at stake.

And so what they were struggling with is the comparison of rejecting same-sex couples, to rejecting African-American people and interracial couples. So each time the word race in any variation came up in the oral arguments, there was a jump on the side of either the ADF, or the main justice was Justice Alito carrying that, to interrupt that, to not let it happen. 

So when Justice Sotomayor started to say: Well, on that premise, you’re free to hold your opinions, you can also discriminate against disabled people, because maybe you believe that they shouldn’t actually create a family, and interracial couples.

Justice Sonia Sotomayor: — tell me why it’s not protected speech, the identical message that — that Justice Barrett put forth, but by a disabled couple. And you say I don’t want disabled people to get married. I think propagating a disability is against my personal belief. It doesn’t have to be religious because we’re not dealing with the religious part of this. I don’t want to speak that message. I too believe that two disabled people getting married and telling their story of how they got in love, I’m not going to serve those people because I don’t believe —

Kirsten Waggoner: It’s not — 

SS: — that they should be married. What’s the difference between that and I don’t believe Black people and white people should get married? 

HK: Because it didn’t really disappear from the discussion, they brought a second line of argument. And the second line of argument was about Obergefell, the recognition of same-sex couples, and saying remember that in Obergefell when Justice Kennedy acknowledged and recognized same-sex couples, he said that some honorable people actually think that this is not really an appropriate kind of marriage. 

And they just repeated during the oral arguments — and when I say they, it’s Ms. Waggoner and Justice Alito — the premise of honorable people, honorable people, that are not like the racists. 

So there was a really big theme there: Is refusing same-sex couples similar to refusing people because of race? And they were leading a line of: No, that’s not the same. You cannot be an honorable racist, but you can be an honorable religious person who disagrees with same-sex marriage. 

However, one thing that is being left out is that there is no way to cabin that. Remember that we explained that the Supreme Court took the claim of free speech and not the claim of religious liberty. So because it’s free speech, free speech protects racists, and sexists, and bigots, and everyone. So if someone has, because of their free speech, the right to discriminate, then of course that it will be the decision that if it is in conflict with your free speech, you can avoid anti-discrimination laws, then the next move is to just say, well, part of me thinks that people, based on race, are inappropriate and therefore I will do the same. 

Justice Jackson also reminded people — and that was a great reminder on her part, great interjection — that a lot of people resisting interracial couples or intermingling of the races were basing it on religion. I mean, there is no limit to what segments of religion can create in terms of objections: Objections to women to women’s rights, what they can wear, to what they can do —

KBJ: Historically, opposition to interracial marriages and to integration, in many instances was on religious grounds. So I don’t know that we can say that just because we have a religious objection to same-sex marriage in this situation that wouldn’t necessarily implicate religious objections to other kinds of situations.

HK: This is really unlimited. So really, part of the harm here is this case is really unlimited in its scope. This oral arguments phase was really exposing a lot of that, a lot of inappropriate moments — not only in the hypotheticals, by the way. Throughout the entire argument, there were really hostile references to same-sex marriage. And it’s hard to reconcile this with the view that this is [an] honorable view. 

While I understand the religious argument here, you don’t have to call a marriage of someone else “false.” And the word false was used again and again during the litigation; the word “bad” marriage was mentioned. The Justices talked about things we loathe, including this marriage; things that are offensive to one’s beliefs. So there was so much of this hostility. 

At a certain point, Justice Gorsuch talked about how the baker for Masterpiece was sent to a re-education program:

EO: But, here, they are defining their service by excluding someone based on their —

Justice Neil Gorsuch: That’s their religious belief.

EO: Well, in Colorado —

NG: You can’t change their religious belief, right?

EO: No, but — but -— well, two —

NG: And you protect religious beliefs under the statute, right? That is one of the protected characteristics in theory.

EO: Yes, and in practice. If it wasn’t in practice, we have heard about it over — over the past several years and — and my friend has pointed to no example where this has been applied in a — 

NG: Mr. Phillips did go through a re-education training program pursuant to Colorado law, did he not, Mr. Olson?

EO: He — he went through a — a process that ensured he was familiar with —

NG: It was a re-education program, right?

EO: It was not a re-education program.

NG: What do you call it?

EO: It was a process to make sure he was familiar with Colorado law.

NG: Someone might be excused for calling that a re-education program.

HK: To me, the hypotheticals and those expressions of hostility are really part of what was so awful and went off track in this litigation. And it all happened because there were no facts. There was no other side. There was nothing to tell here. And therefore it went all over the place, to places that, to me, are inappropriate.

JS: Yeah, I was just going to ask you, basically, which of the hypotheticals stood out for you as actually capturing the core issue and the absolute certain fallout that would flow from a decision in 303 Creative’s favor?

HK: You know, the surprising part is that I think Justice Barrett was, at a certain point, trying to help Ms. Waggoner by introducing a story about [an] interfaith couple, but to me, it only said more about how unrestrained and limitless it is once you start doing all those things. Or there was a story that was part of how inappropriate it was about a couple that met in the workplace, and they were having an affair while being married to other people:

Justice Amy Coney Barrett: A heterosexual couple comes to her and in the engagement story part writes a story that goes like this: We met at work, we were both married to other people, but what began as late nights at the office quickly turned into love. After six months, we realized we could be happy only with each other, so we decided to begin our story today, got divorced, and are marrying each other. Does she publish it? 

KW: I don’t believe that she would. 

HK: I want to say actually, that from the variety of hypotheticals, people should get scared. Because it can target almost any one of us because, again, we have zero control on the free speech of people. And free speech is just unlimited. So if someone wants to say: Well, if you were married to someone when you met a new person, all of us with Chapter B in their lives should be worried — and who knows who is next!

So I think that once you start going downhill with human dignity, that’s where you land. And if you will allow me, I want to say that they repeatedly talked about how this view of being against same-sex weddings is honorable. And it’s honorable because Justice Kennedy promised them that. But Justice Kennedy never promised to allow people to discriminate. Justice Kennedy wrote Masterpiece and said: No, you cannot discriminate. I understand that you’re against it. And I believe you and your religious belief is sincere, Mr. Baker, but that doesn’t mean that you can discriminate. 

So no one promised honorable people that they’re allowed to discriminate. But what is really mind-boggling is how one-sided is this game of honor and dignity, because while they were emphasizing how honorable is the point of resisting same-sex couples, and also at one point, Ms. Waggoner said no one has to be compelled to express a message that violates their core convictions because it’s demeaning to them — meaning it’s humiliating that Colorado dares requiring equality. That was, by the way, a response to Hamilton, because she really got carried away with that. 

JS: [Laughs.] 

HK: But if you think about it, no one can demean the business owner. But the business owner can totally humiliate the customers, right? Only, you strategized the litigation in a way that no one can actually tell a story of how humiliated they felt. I think the loss in Masterpiece or the way Masterpiece said: No, you cannot discriminate — is because there was a voice there of really real people who got so offended and crushed by the refusal. What do you mean our wedding is false, right?

JS: And there was also a lot of talk about well, I guess trying to somehow cabin this in a way by talking about sort of a who versus a what. 

So, at one point, Justice Neil Gorsuch is like: Well, Smith would refuse this wedding website to heterosexual people too! So it’s really not the who who is asking, but the what they’re asking for.

And this struck me as odd [laughs] on a couple of levels. I mean, Smith does not want to provide wedding websites for same-sex weddings. And I mean, heterosexuals don’t generally have same-sex weddings. So the what — the same-sex wedding — is inextricably linked to the who in this scenario, right? Can you explain that a little bit or talk about that a little bit?

HK: Yeah. So this is one of those destructions, I think of, why are you doing this — and adjacent to that is the argument — but she serves the LGBTQ community; only when they get married, she disagrees with them!

And as Obergefell itself said, and they rely on it in their argument, but it also says, without the ability to get married and celebrate the marriage like anyone else, you really don’t have the full personhood. Right?

JS: Right. 

HK: So I don’t think you can separate the what and the who, in that particular situation. 

I have to say that if the same Lorie Smith went to the public square and wanted to carry signs against same-sex couples, I would be with her protecting her free speech. So I do think that people do have rights to opinions that are difficult for us to hear; I would not be on the same side of the campaign with her, but we both should have access to the public square. 

The problem here is the platform they chose to use. This insistence [that] not only we disagree with same-sex marriage, but we take the battle to the marketplace, and we’re trying to create via the marketplace, this segregated marketplace that will convey the larger resistance to same-sex couples. 

And so it’s not that Colorado chases businesses. It’s that those businesses chose to enter the wedding industry to make the point that actually is a political point: We never agreed with the right to get married, and now that it exists — after Obergefell — we’re going to resist it in many ways. And this is our most creative one in which we’re going to use cakes and flowers to make a political point.

JS: You know, I was really sort of worried after the oral argument? I think part of it does have to do with how bonkers a lot of the hypotheticals were. And, of course, it naturally all relates back to the problem of not having a story on the ground, just sort of this hypothetical that Lorie Smith wants to build these websites, she just doesn’t want to do them for you, as you said. 

But by the end of the argument, I was just sort of like: Oh, no, where is this going? And I fear that it’s kind of going towards what you’re suggesting, that the wheels are about to come off the bus here. 

I mean, and then it also strikes me that, of course, yeah, they didn’t have to take this case, right? They kind of grabbed it. 

There’s probably nothing uplifting to say about all this. But I’m just curious what your takeaway was. I mean, the harms are very clear. And I’m very worried. And I don’t know that there’s a reason for me not to be worried, if that makes sense. I’m kind of curious what your final sort of takeaway was.

HK: I share your sentiment. That’s how I ended after listening carefully to the oral arguments, thinking it’s going the wrong way. And the reason it’s going in the wrong way is structural. I think the Supreme Court has six conservative justices. They were never happy about the recognition of same-sex weddings and marriage, and so now they’re undermining it. 

I mean, in the debate about abortion, if you recall, when we were all taken a very, very fundamental right [sic] that we thought we had for 50 years, there was a question: What’s next? Whose rights are next? 

And some people were saying: Oh, no, they’re not going to touch same-sex marriage. But this is a serious way of touching and injuring same-sex marriage, right? Because you can recognize the marriage but undermine everything else around that. And then you really mark second-class citizens here. And then when the list is open of who is a second-class citizen, then we can add to the list more and more people.

So this is dreadful, and it comes from the structure of the Supreme Court. I think that’s another significant difference between the times of Masterpiece Cakeshop and 303 Creative. 

What’s changed is also not only the litigation, but also who’s on the Supreme Court, and you could hear it. I mean, they joined it from the perspective of religious liberty and from the perspective of disliking strongly the state, like you could hear it in Justice’s Gorsuch reactions — like what about Colorado compelling — and that’s like a mixture of several conservative agendas. Like now the state is not allowed to enforce anti-discrimination laws. 

So we are going to before the ’60s, this is undoing the entire system of civil rights. And with no civil rights in the market, no civil rights in the workplace, no civil rights in housing, no civil rights in the public accommodations, where are we headed is a really severe question. 

The only sliver of possible hope I can try to work on, and this is what I’m working on, is to say: You know what? This is not only between states and their citizens. This is also between us as human beings. The problem is interpersonal — although they are hiding it, they were trying to hide it. And we have a legal system that covers the relationship between person to person.

And so to me, my project is to take a look at those laws — for example, contract law. If I’m trying to make a contract with you, and I have the money, and I respect your business and your rules, and I merely entered your store and ordered something you sell to everyone else and I can pay cash or credit, whatever you want, does contract law allow you to say: No, I will not contract with you?

Another big one is tort law. In our tort law, we are actually banning people from intentionally inflicting emotional pain on others. So if someone is to reject in a very humiliating way a client — so David and Charlie with the mom get into the store, only to be turned around for who they are, that’s a lot of pain to go back home with. And so isn’t it intentional infliction of emotional distress? 

So, I don’t know. This is kind of against the grain of our habit to say political questions are going to be determined under constitutional law, and our tort law, property law, and contract law are going to deal with money and the people who have money. But I do think that when interpersonal problems are happening, those laws should offer remedy, even if we lose the battle on anti-discrimination laws.

JS: You know what? I will take that sliver of hope in the law and end there. 

HK: [Laughs.]

JS: Hila, thank you so much for joining us.

HK: Oh, thank you. It was a fascinating conversation.

JS: That was Hila Keren, associate dean for research and a professor of law at Southwestern Law School in Los Angeles. 

This episode was produced by Laura Flynn and José Olivares. Roger Hodge is editor in chief of The Intercept. And Rick Kwan mixed our show. 

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Until next time, I’m Jordan Smith.