THE POWER OF THREE OUTNUMBERED, A TRIO OF SUPREME COURT JUSTICES SPOKE ELOQUENTLY ABOUT THE COURT’S RETREAT ON CIVIL RIGHTS
A WISE TRIO. These spotted owls in Kathmandu, Nepal appeared on The Guardian newspaper's website, and reminded me of the three dissenters in last week’s Supreme Court retreat on civil rights. CREDIT: Prakash Mathema/AFP/Getty Images **
TO THE THREE DISSENTERS on the U.S. Supreme Court, thank you. Thanks for being such good losers, which I mean as a compliment. This trio of wise women refuses to stay quiet, despite being horribly, often hopelessly outnumbered. They keep the fires of American compassion, common sense and progress glowing. No fun, being on the wrong end of the equation. Six to three. But the trio’s writings give us hope, establishing an archive of legal theory and reason that will be a resource to correct the misdeeds of the court’s current right-wing majority, hell-bent on undoing decades of reform. Some commentators have criticized the quarrelsome tone of the exchanges between the court’s liberals – Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson - and its conservatives - Chief Justice John G. Roberts Jr., and Justices Brett M. Kavanaugh, Amy Coney Barrett, Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch. But I welcome the rancor. This is when the justices and their smarty-pants clerks, who do a lot of the scut work, shed legal-speak to talk clearly, and even eloquently, about their nation-shaping decisions. I was thinking about the role of dissent as I was looking over one of two disturbing decisions the court dropped on Bad Friday, June 30, the last day of the court’s current session. (It’s always a relief when the court takes a break, even knowing that not all the justices have paid for past vacations). The case I was reading was 303 Creative LLC, et al. v. Elenis, et al., No. 21-467. And let me apologize for taking up your time on a holiday weekend with this kind of thing. Diving into a legal opinion is only slightly less exciting than reading instructions for assembling your new, potentially explosive, backyard grill.
THE JUSTICES: Front row, from, left: Sonia Sotomayor, Clarence Thomas, John G. Roberts, Jr., Samuel A. Alito, Jr., Elena Kagan. Back row: Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh and Ketanji Brown Jackson. CREDIT: Fred Schilling, Collection of the Supreme Court of the United States
THIS IS THE CASE in which the high court, 6 to 3, supported a Colorado website designer, Lorie Smith, who didn’t want her one-person company, 303 Creative, to invent websites for gay people’s weddings. She said that same-sex marriages were “false,” because God ”sanctions only a man-woman union, and that such a marriage “violates God’s will.” She wasn’t opposed to working with same-sex customers on a variety of web projects, just not on their weddings. Smith hadn’t dealt with the issue in real life. Her artistically customized wedding sites were still in the planning stages as she filed suit because of “worries” that Colorado’s public accommodation laws – developed to forbid restaurants, hotels and many other businesses from keeping out Blacks, Jews, women, as well as gays – would force her to create websites in which she didn’t believe. Critics of the lawsuit, including Justice Sotomayor, who wrote the dissent and was joined by the two other liberals, said this reasoning was a backdoor way of slamming the front door on wedding-bound same-sex persons, and inevitably, this would lead to lots of other retreats from hard-won civil rights advances.
BUT GORSUCH, looking at it from designer Smith’s point of view, said enforcement of the Colorado public accommodations laws would force her to express views she didn’t believe. And a lot more mischief could come from that kind of enforcement.
Gorsuch wrote: “… the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage . . . Countless other creative professionals, too, could be forced to choose between remaining silent, producing speech that violates their beliefs, or speaking their minds and incurring sanctions for doing so.” Gorsuch cited past Supreme Court decisions about free speech, such as one which allowed school students to observe their beliefs as Jehovah’s Witnesses by not forcing them to salute the American flag or say the pledge of allegiance.
Gorsuch wrote: “Like many States, Colorado has a law forbidding businesses from engaging in discrimination when they sell goods and services to the public. Laws along these lines have done much to secure the civil rights of all Americans. But in this case, Colorado does not just seek to ensure the sale of goods or services on equal terms. It seeks to use its law to compel an individual to create speech she does not believe. The question we face is whether that course violates the Free Speech Clause of the First Amendment.” As a writer, I find Gorsuch’s reasoning intriguing, placing the Court as a principled champion of the First Amendment, which I happen to believe is the Constitution’s most important provision. Sure, plenty of writers will write the things that the person who pays them wants them to. But there’s always the writer’s choice not to do that.
ALTERNATIVELY, Gorsuch could be doing the devil’s work, using noble words to accomplish something evil.
Sotomayor wrote: “Today is a sad day in American constitutional law and in the lives of LGBT people. The Supreme court of the United States declares that a particular kind of business, though open to the public, has a Constitutional right to refuse to serve members of a protected class.” “The Court does so for the first time in its history, By issuing this new license to discriminate in a case brought by a company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.” Where will it stop? she asked. Could a designer refuse to create a website for an interracial marriage? A company selling stationery might refuse to sell a birth announcement for a disabled couple because she thinks such couples shouldn’t have children. A business that offers family portraits could limit them to “traditional” families. Smith would be allowed to post a sign: wedding-minded gays not welcome.
Sotomayor wrote: “Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities. New forms of inclusion have been met with reactionary exclusion. This heartbreaking. Sadly, it is also familiar.” “When the civil rights and women’s rights movement sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims.”
HAVING READ BOTH he opinion and its dissent, I can say that Gorsuch got one thing right: “It is difficult to read the dissent and conclude we are looking at the same case.” On one hand, Gorsuch made a convincing argument that the case might be quite individual – about one website designer, who considers herself an artist, who puts her heart and soul into her work and has deeply held beliefs that would be violated if forced to take on particular assignments.
Gorsuch wrote that much of the dissent: “...focuses on the strides gay American have made toward securing equal justice under law. And no doubt, there is much to applaud here. But none of these answers the question we face today: Can a State force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?”
Sotomayor, in dissent, wrote with passion rarely present in an official document, about the effect of discrimination against gays and lesbians in the marketplace: “Ask any LGBT person, and you will learn just how often they are forced to navigate life in this way. They must ask themselves: If I reveal my identity to this co-worker, or to this shopkeeper, will they treat me the same way? If I hold the hand of my partner in this setting, will someone stare at me, harass me, or even hurt me? It is an awful way to live. Freedom from this way of life is the very object of a law that declares: All members of the public are entitled to inhabit public spaces on equal terms.”
TO ME, the persuasiveness of the justices’ writings is one of the most problematic parts of this case, which is all the more ironic because some of it is about free speech. Because we have capable, skilled, talented writers making convincing cases for any side of any debate. But that in this case, what matters in isn’t settled by words but by numbers. Six to three. If you’re in the majority, your assignment is to make sure the words support your superior mathematics. You might even believe what you’re writing, but it’s not required. It could be the same for the dissenters: lay the groundwork for reform against the day, probably later than sooner, when the mathematics do change. But words really do count. In the long term, they matter more than the numbers. I’m betting that Sotomayor, and her two colleagues, are correct, that the majority decision is a dangerous backsliding of hard-won elements of civil rights justice, a subterfuge that uses the First Amendment to promote a nasty purpose. And it’s a worthy mission for the dissenters to say so.
Sotomayor wrote: “The unattractive lesson of the majority opinion is this: What’s mine is mine, and what’s yours is yours. The lesson of the history of public accommodations law is altogether different. It is that in a free and democratic society, there can be no social castes. And for that to be true, it must be true in the public market.”
I'VE BEEN a reporter and writer for 58 years, long enough to have learned that journalists don't know very much, although I've met some smart ones. Mainly, what reporters know comes from asking other people questions and fretting about the answers. This blog is a successor to one inspired by our dog, Phoebe, who was smart, sweet and the antithesis of Donald Trump. She died Feb. 3, and I don't see getting over that very soon. Occasionally, I may try to reach her via cell phone.