Supreme Court Alito Flag

President Donald J. Trump

The Washington Post

staff

The family of Hersh Goldberg-Polin appears on a screen via video link during a news conference in Tel Aviv

Former US president Trump's hush money criminal trial continues in New York City, USA - 13 May 2024

Trump

US-POLITICS-JUSTICE-COURT-TRUMP

Contributor

For The Washington Post

(Chris Gash for The Washington Post)

APTOPIX Israel Holocaust Remembrance

op-allen-democracypromo

Stormy Daniels

UGCR

RUSSIA-US-DIPLOMACY-BASKET-COURT

(Michelle Kondrich/The Washington Post)

**ONE TIME USE ONLY FOR OP-LAMOTT

Sonia Sotomayor,Clarence Thomas,John Roberts,Samuel Alito,Elena Kagan,Amy Coney Barrett,Neil Gorsuch,Brett Kavanaugh,Ketanji Brown Jackson,Michael Dreeben

Children holding hands

ONE TIME USE FOR OP-CARNEY KIDS 

FEDERALISTGALA

Four Dalmatian Puppy

other

People visit the site of the Nova festival, in Reim

Fake Electors Indictment Arizona

Respond to prefers-color-scheme dark in app web views

Follow section front redirects in Spectrum

Enable NLP source in PCS for load testing

Switch off the News Alerts Survey Widget when we have enough responses

Poll to determine if new LUF updates are available

Allows the winning A/B test variant to be turned on without Spectrum deployment

Show infinite scrolling sections in Assembler MultiView

Show option for NLP article summaries in Action Bar

Show NLP summaries collection recirc on article pages

A general feature flag for Recipe Features that aren't yet released

Feature flag for media team features that aren't yet released

Use new Orca video player for preroll plugin in Spectrum

Show the snow tracker (instead of the heat tracker) on Spectrum

In photos: The 149th running of the Preakness Stakes

Book Tour: At home with Amor Towles

Gov. Doug Burgum speaks in support of Trump

Carolyn Hax: Friends say to break other plans to avoid offending new man

Ask Amy: Should my husband get a say in what I do with my inheritance?

Ask Amy: Can’t a single woman eat alone without interruption?

Kyle Finnegan’s rare hiccup helps Phillies to a 4-3 win in 10 innings

Joey Gallo returns, but Nats endure another quiet offensive night

Walter Johnson’s jersey from 1920 showdown with Babe Ruth sold at auction

Would you eat this weird sandwich? Barry Enderwick would. 

She finished chemo then got a medical degree: ‘The dream is real now’

Puppy abandoned with heart-rending note is adopted, named Minerva

‘Never Trump?’ ‘Never Biden’ voters might loom larger.

How Jim Jordan tried to connect the dots on Biden’s $8 million book deal

Lawyer preparation suggests Trump won’t testify in New York trial

Blue Origin to fly again as space tourism struggles to get off the ground

Why this company’s biggest fans turned against it

These ISIS news anchors are AI fakes. Their propaganda is real.

The problem with diversity statements — and what to do about them

Russia shows resilience. There is more to do for Ukraine.

Trump promises tax cuts and fewer rules. CEOs shouldn’t fall for it.

The world’s coolest hotels want to tell you a story

6 Airbnb red flags to spot before you make a booking mistake

Flying budget airlines might not be as cheap as it seems

Biden’s false claim that inflation was 9 percent when he took office

Did Obamacare ‘massively’ increase the cost of health care?

The other side of Punta Cana: A crackdown on Haitians

Top White House aide to meet Netanyahu, who is under political pressure

Live updates: Rescuers struggle to find helicopter carrying Iranian president

US President Joe Biden departure

Jacquelyn Martin

In 2014, a year before the Supreme Court <a href="https://www.washingtonpost.com/politics/gay-marriage-and-other-major-rulings-at-the-supreme-court/2015/06/25/ef75a120-1b6d-11e5-bd7f-4611a60dd8e5_story.html" target=_blank>established the constitutional right</a> to same-sex marriage, two friends of mine held a wedding celebration near their home in Laramie, Wyo. Their planning involved an extra bit of diligence: mentioning to potential venues that they were a lesbian couple and many of the guests would be gay, and that they wanted to be sure everyone would be welcome.

Eventually they found a beautiful mountain lodge for the ceremony, pie and dancing. But first, two different venues told them they should probably take their festivities elsewhere.

That story hovered in my mind Friday as I read the <a href="https://www.washingtonpost.com/politics/2023/06/30/303-creative-elenis-supreme-court-decision-lgbtq-rights/" target=_blank>Supreme Court’s 6-3 decision</a> in 303 Creative LLC v. Elenis. I thought to myself, not for the first time, “Maybe this would make sense if I had gone to law school.” Justice Neil M. Gorsuch’s majority opinion upholds the right of Colorado designer Lorie Smith to open a straights-only wedding website design business. For the state to restrict her from doing so, he writes, would violate her free speech rights under the Constitution. “Tolerance, not coercion, is our Nation’s answer,” he rather grandly concludes.

If “tolerance” seems like an upside-down way of describing the latitude to refuse services to certain classes of Americans, it’s just part of a slick, almost surreal piece of legal writing that, for this civilian, could only be countered by blinking hard and remembering my real friends turned down by wedding venues.

What’s strange about the opinion? First of all, there is the supposed harm to the plaintiff. Smith, by her own account, is not a designer of wedding websites. She is merely an aspiring wedding-website designer who reportedly <a href="https://www.cpr.org/2022/12/01/this-colorado-web-designer-doesnt-want-to-make-wedding-sites-for-same-sex-couples-the-u-s-supreme-court-will-decide-whether-thats-legal/" target="_blank">dreamed from childhood of the heterosexual wedding websites she would someday create</a>. While one can admire the particularity of this vision, her plight pales a bit beside the counterweight of gay couples trying to plan weddings without facing discrimination.

On top of that, according to the <a href="https://newrepublic.com/article/173987/mysterious-case-fake-gay-marriage-website-real-straight-man-supreme-court" target=_blank>mind-blowing reporting</a> of the New Republic’s Melissa Gira Grant, a 2016 email included in the plaintiff’s filings from a gay man asking Smith for wedding design services is apparently fake. His contact information led Gira Grant to a straight, baffled, married web designer who says he would have had no reason to contact Smith.

Then there is the argument itself. A wedding website is an example of “expression,” sure — both sides agree on that. But Gorsuch, following a lower court, calls such a website “pure speech,” as if no services were being provided and the primary point of the website was to express the designer’s views on matrimony. In any case, he argues, the right of protected classes to equal treatment holds no weight before the free speech rights of expressive vendors: “When Colorado’s public accommodations law and the Constitution collide, there can be no question which must prevail.”

Brian Broome: This Supreme Court pits us against them

This seems awfully odd if only because there is such an obvious comparison to interracial marriage — historically anathema to certain religious groups but not, in my lifetime, something for which vendors could legally withhold services. But maybe I was the crazy one. So I asked for help from Lewis and Clark Law School professor James M. Oleske Jr., whose <a href="https://williamsinstitute.law.ucla.edu/wp-content/uploads/06-DAJ15-Oleske.pdf" target=_blank>2015 article</a> comparing religious exemptions for interracial marriage and same-sex marriage is cited by Justice Sonia Sotomayor in her dissent.

Oleske, who <a href="https://www.supremecourt.gov/DocketPDF/21/21-476/234068/20220819151646685_303%20amicus%208.19.22%20CLEAN.pdf" target=_blank>co-authored an amicus brief</a> in the 303 Creative case, acknowledged that in exceptional cases, “when a service provider’s provision of services would objectively be viewed as sending the provider’s own message, … application of a public accommodations law can violate the First Amendment.” But, he wrote in an email, “based on how 303 has actually operated its business to date, making websites for entities containing content that no reasonable observer would attribute to 303 as opposed to the customer, we argued that this case did not fit the exception.”

In the end, it was Sotomayor’s <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf" target=_blank>flaming sword of a dissent</a> that translated my perplexity into legal logic. She calls the argument that Smith’s business should be shielded from anti-discrimination law because it would be offering custom websites “wrong. Profoundly wrong.” Consider a company that does school photos, she writes: “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.”

303 Creative could include whatever message it wants in wedding websites, Sotomayor points out. But, she notes, “the only thing the business may not do is deny whatever websites it offers on the basis of sexual orientation.”

On that point, the court’s majority disagreed. So what now? How might this affect other protected groups — say, those interracial couples? “The majority notably does not attempt to cabin its opinion to same-sex couples,” Oleske wrote in response to my question, “and attempting to do so would contradict the free speech principles the majority cites.”

These are strange times, in which those of us without a legal background may watch our rights recede — as women, as people of color, as members of the LGBTQ community — without necessarily feeling able to argue back. We are left trying to make sense of arguments that appear to cut against common sense and common good. For the moment, all we can do is turn to those who do have that training — and speak up about the moments when, in the real world, people lose out on equal opportunity as a consequence of such decisions.

Amanda Katz is a senior assignment editor for Opinions, where she has worked since 2022. She was previously an editor at CNN, the Boston Globe and Bloomsbury Publishing, and has written for the New York Times, the Boston Globe, Slate and other publications.

Amanda Katz

washpost

The Supreme Court's 303 Creative ruling is 'profoundly wrong'

the-washington-post

AP Was There Same Sex Marriage

Editorials

Columns

Guest opinions

Cartoons

Submit a guest opinion

Today's Opinions newsletter

Opinions

Sign up for the Prompt 2024 newsletter for opinions on the biggest questions in politics

Washington Post Opinions

The Washington Post Opinions section features opinion articles, op-eds, editorials by the Editorial Board, global opinions and letters to the editor on the issues of the day. Offerings include columns by Washington Post opinion writers, political cartoons by editorial cartoonists Ann Telnaes and Michael de Adder and podcasts by Jonathan Capehart.

Sign up for Democracy, Refreshed, a newsletter series on how to renovate the republic.