How the 303 Creative case threatens to roll back the 21st century | Crooked Media
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December 12, 2022
Strict Scrutiny
How the 303 Creative case threatens to roll back the 21st century

In This Episode

The Supreme Court recently heard 2.5 hours of oral arguments in 303 Creative v. Elenis— the case about a Colorado website designer who doesn’t want to create wedding websites for gay couples. The arguments were absolutely bonkers, with justices invoking kids in KKK uniforms, Black mall Santas, dating sites for people seeking affairs, and re-education camps. Leah, Kate, and Melissa recap the arguments and what they may portend for the future of LGBTQ rights.




Leah Litman [AD]


Show Intro Chief Justice, may it please the court. It’s an old joke but when a argued, man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.


Leah Litman Welcome back to Strict Scrutiny, your podcast about the Supreme Court, the legal culture that surrounds it, and the insane mall that it inhabits.


Melissa Murray Guess what, folks? The band is back together, as you can hear. Leah is back with us and not a moment too soon. So we are your hosts. I’m Melissa Murray.


Kate Shaw I’m Kate Shaw.


Leah Litman And I’m Leah Litman. And I just got off a redeye flight, so I’m not responsible for anything I say in this episode. It is what we in the business call “off the record.” That is the Kathryn Hahn wink. Yes. If you didn’t know this, podcasts can be off the record. This will be our first one.


Melissa Murray Yes. Definitely. On background, Chatham House rules apply here.


Kate Shaw Nothing we say can be used against us in any fashion. So we are going to spend the entire episode today recapping just one crazy case, because honestly, there’s so much to say about it that we couldn’t talk about it for less than an hour. So that’s 303 Creative versus Elenis, the mall reference should have given it away. But yeah, we have been doing this for a while now and this is one of the craziest weeks we’ve had on this SCOTUS beat. And this argument is, you know, maybe the craziest that we have had a chance to debrief. So buckle up. It’s going to be a wild one.


Leah Litman First, some breaking news since we last recorded. Senator Reverend Raphael Warnock has been reelected to a full six year term in the United States Senate. This initially appeared to cement a solid Democratic majority in the Senate, which should mean judges, judges, judges and more judges. But then Friday morning news broke that Arizona Senator Christian Cinema was leaving the Democratic Party and switching her party affiliation to Independent. It’s not totally clear whether this is just about the inevitable primary challenge, although I think it’s mostly about that. Nor is it clear. Although she seemed to imply that she was still going to be caucusing with the Democrats, like the other independents in the Senate, Senator Sanders and King. So TBD what this means for judges. But I don’t know.


Kate Shaw I mean, either way, there are still a lot of confirmations to get done. So judges, judges, judges should be the order of the day. And I should say that even though she has been an incredibly unreliable Democratic vote on legislation and actually some executive branch nominations as well, she’s actually been decent on judges. So I hope that this is not a major bump in the road to getting all of the pending nominees confirmed and all of the open seats filled. As we’ve mentioned many times, there are a lot of people who are just waiting for their votes. Dale Ho Julie Rikelman. The list is long. We’re really excited. All these folks should be confirmed if not by the end of this year, at the very beginning of next.


Melissa Murray There are also some new vacancies to fill. We hear that George Hazel, who is a district court judge in Maryland, and Gary Firerman, who’s a district court judge in Illinois, are both leaving the bench, which is really interesting. They’re both really great judges. And I hear on background that they are both friends of the pod. And to be very clear, what does a friend of the pod mean for this purpose? Well, it definitely does not mean that we have purchased a home across the street from their homes, and it does not mean.


Leah Litman Nor does it mean we’re flying them out to our second homes in Jackson Hole, Wyoming, which, by the way, I don’t have.


Kate Shaw Just a ride home after an intimate dinner for four when somebody falls ill, we might be offering that.


Melissa Murray Again. It is a purely casual and social relationship, nothing more. But because it is a very casual and purely social relationship, we are very excited to see what comes next for these judges. So best wishes to them and best wishes to the Senate Judiciary Committee to fill those seats.


Kate Shaw Biden, White House first, right. And then Senate Judiciary Committee. But you guys know what to do. And maybe one more beat on this. I mean, I do think that the cinema defection should be a reminder that whether we’re talking 51 or 50 like these margins are still razor thin. And there are members of the Democratic side in the Senate who are not spring chickens. And I don’t know, people leave the Senate occasionally before a term is done. Like it just it’s not the majority. Whatever the actual name is, people get covered and can’t vote. Yeah, there’s all kinds of things that happen. And so I just think they need to be moving with like a sense of profound urgency on judges.


Melissa Murray Yeah, that’s what I say to my kids in the morning when we’re on the way to school. Like, can you please move with a sense of purpose and urgency and they just look at me and.


Kate Shaw I feel like the Senate does the sort of the same thing. But we’re going to continue to ask.


Melissa Murray Let’s get to the recap. So the court heard last Monday 303 Creative verses Elenis and Wow, what a way to start the week. This was absolutely bananas. It was scheduled for 70 minutes. It actually went for about two and a half hours. And honestly, it felt like two and a half years, dog years. Right. So there were a lot of lowlights that we need to discuss. So we are. Can you first briefly recap this case so we know what we’re talking about before we get into the absolutely bananas depths that the court took us to?


Leah Litman Yes. So I. This case is supposed to be about a would be Colorado Web designer Lorie Smith, who is challenging Colorado’s anti-discrimination law. That law requires providers of goods and services to provide those goods and services on an equal basis, including prohibiting discrimination on the basis of sexual orientation, among other characteristics. Smith, however, says she does not wish to design websites for same sex couples planning same sex weddings. And she says that this Colorado law, which by its terms requires her to provide her commercial services to all on an equal basis, violates her free speech rights under the First Amendment by compelling her to either speak or remain silent against her views.


Kate Shaw First up to the podium for this argument was Kristen Waggoner from the organization Alliance Defending Freedom, arguing on behalf of the would be web designer Lorie Smith. Sidebar Did you two note any interesting other names on the brief with her? So there was John Bursch, who defended the Michigan marriage law prohibition on same sex marriage in the Michigan case that was consolidated with Obergefell. And also Erin Holley, who is a former law professor who was married to Josh Holley. So, you know, Waggoner was not alone in this endeavor.


Melissa Murray Another thing to note upfront, though, is sort of curious. But Kristen Waggoner somehow managed to cast her argument in favor of Lorie Smith, the website designer, the would be website designer. She cast her argument as one that was genuinely about respecting the values of pluralism and diversity. And I just wanted to flag that because that’s going to be important as we go along.


Leah Litman And yes, that would be the line from the would be designer who wants to refuse services to clients seeking websites for same sex weddings because she believes same sex marriage is wrong or false, as she said numerous times. Not sure what that means. Waggoner also repeatedly invoked the prospect of members of other groups being forced into activities if Smith loses. Like she would allude to the lesbian graphic designer or the Jewish baker or the Democratic speech writer and some particular.


Melissa Murray I think that last one could definitely happen.


Leah Litman Right. Yeah. So we’ll get into the fundamental misunderstandings of public accommodations law that were just rife throughout this argument, but some particularly egregious examples of this lie in or depiction from Waggoner’s when Waggoner mentioned Lorie Smith’s, quote, LGBT friends saying the law protected not just Smith, but also her LGBT friends. And she also said in her rebuttal that her argument is, quote, rooted in love of neighbor just a little bit much.


Melissa Murray It’s an interesting take, I think. I mean, on the one hand, it reminds me of when you know that that whole sort of line of discussion like, you know, I’m 100% not racist because, look, I have my black friends here. Like I’m reminded of this because, of course, I’m watching Harry and Meghan right now. And like, you know, there was that whole period of time after the Oprah interview where Meghan accused the royal family of having been racist to murder. And then, like every member of the royal family, was kissing a black child for like five weeks afterwards. Like, that’s that’s the kind of energy it was. And that’s all I have to say about this line of argument.


Kate Shaw Okay. One more bit on at least the opening phase of this argument, which I think definitely was woven throughout, which is that in the opening I remember Waggoner analogized Smith wanting to design websites for opposite sex but not same sex weddings to a, quote, black sculptor who carves a custom cross to celebrate a Catholic baptism but not an Aryan Church rally. She says that sculptor that is whose rights she is before the court trying to vindicate. And I just you know, I think people heard a lot about the dystopian mall Hypo and Black Santa, but you might have missed the black sculptor asked to produce an Aryan cross like 90 seconds in. There was just so much white supremacist rhetoric just invoked throughout the argument. It was actually kind of stunning, and I do think people became numb to it, but that cropped up both. I think, you know, an early indication of what the argument was going to look like, but also an example of the argument Lorie Smith’s lawyer was making, being framed as actually about defending the rights of people like a black sculptor being asked to produce racist sculpture art.


Melissa Murray I mean, Kate, you know, just like abortion and withdrawing abortion rights is about preventing black genocide. And allowing for the expansion of the Second Amendment is about enfranchising and making true citizens of black men. This is really about black people. It’s not about Christian evangelicals. It’s about black people. And redressing the racial injury that obviously what happened when a black sculptor is asked to sculpt an area and cross.


Kate Shaw I mean, the amount of material, Melissa, that will be fodder if you want it to be for your many follow on articles to your Racing Row piece in the Harvard Law Review, which is about the deployment of these this kind of logic.


Melissa Murray Racing the Constitution, except for the equal protection clause. That’s what it’s going to be called. Anyway.


Kate Shaw Oh, my God. Student letters. Keep your eyes out for that. It’s going to be lit.


Melissa Murray There’s going to be an asterisk that’s going to be like equal protection clause excluded. Okay.


Leah Litman [AD]


Melissa Murray Before we get too deep into the argument, let’s try to introduce a few other themes that kept popping up throughout the argument. One of these themes is the difficulty of disaggregating speech from expression and creators like people who engage in the creation of expressive content, on the one hand from those who are mere purveyors of ordinary goods and services on the other. Which is important.


Leah Litman Yeah. And it matters because there isn’t really a question, although I worry by saying there isn’t really a question and tempting fate that there will soon be a question. But at least now there just isn’t a question about the fact that it’s perfectly constitutional for a law to prohibit a commercial seller of ordinary goods or services from refusing to sell items or to serve customers under a anti-discrimination law. That is an anti-discrimination law can say the Apple Store can’t refuse to sell you an iPad because you’re a queer woman. But you know, the ADF says, what if the good or service you’re selling isn’t just some ordinary good or service, but something expressive or something that looks a little bit like speech, like a limited edition iPad with special Jack Phillips cake art on it. That’s how ADF is attempting to introduce the constitutional question in the case.


Melissa Murray Another really big theme in the case was the distinction between status discrimination, which ADF seemed or at least paid lip service to agreeing can be constitutionally prohibited under public accommodations laws versus conduct discrimination, which ADF said is an entirely different case. So status discrimination is where you are discriminated against because of who you are. So discrimination because of sex or because of sexual orientation would be status discrimination. Conduct discrimination, on the other hand, is where you’re treated differently because of what you do. Again, a very interesting distinction on who you are versus your conduct entirely.


Leah Litman And ADF is saying, well, public accommodations law can prohibit discrimination on the basis of status. And you know, my client, Lorie Smith, is not engaged in discrimination on the basis of status. And again, kept saying Lorie Smith is not discriminated against people because of their sexual orientation. It’s a she’s discriminating because they’re a man marrying a man or a woman marrying a woman that’s marriage to someone of the same sex conduct rather than being gay or lesbian, which is a status. This is literally their argument. I’m just stating it.


Melissa Murray No, this is actually quite common. Like, you know, there are a ton of family law cases litigated in the late nineties, early 2000s where lesbians or gay men are losing custody of their children. And the argument is like, we’re not taking away your children because you’re gay. We’re taking away your children because you were engaged in a gay lifestyle or gay sex or something like that.


Leah Litman But those arguments were supposed to disappear after Lawrence and Obergefell recognized that in this context, there isn’t a distinction between that conduct and status.


Melissa Murray But that would not jive with rolling back the 20th century, Leah. Here we are.


Kate Shaw But it did feel like this argument was unfolding in a pre Lawrence world, in Lawrence for, you know, nearly 20 years ago struck down state like criminal prohibitions on same sex sex. And I thought kind of eradicated this false line between status and conduct. So, you know, if this distinction didn’t make a lot of sense as you listen to the argument or as we’re describing it now, like you are not alone. But that is what the attorney for Lorie Smith kept returning to. She would say things like Lorie Smith will serve LGBT patrons. She just won’t provide wedding websites for them. And in addition to kind of the pre Lawrence quality of this logic, it is actually the same line of argument that cake artist Jack Phillips used in Masterpiece Cakeshop. Right. You know, he insisted that he was 100% happy to furnish a gay man or lesbian with a rainbow birthday cake because they were born. I just say no, and I’m quoting Jack Phillips here, to wedding cakes.


Leah Litman And the idea that there’s some separation between status and conduct here is, as we’re saying, just kind of ludicrous. And it reminds me of this moment at the Obergefell oral argument where I thought Justice Kagan was honestly going to murder John Bursch, you know, who was on the brief, as you noted in this case, and had argued Obergefell, you know, in defense of states, being able to exclude same sex couples from marriages. So let’s just play those clips here.


Clip That’s okay. Dignity and that’s fine. You’re drawing. Distinctions based on sexual orientation in these laws? Oh, gosh, no. Because the state doesn’t care about your sexual orientation, but the state cares about it is that a logical way out? Not asking about your reasons and whether you have any or not, but whether you have any or not. You are drawing distinctions based on sexual orientation. That’s that that’s what these laws do. No statute that facially classified based on sexual orientation would look very different. What these statutes do is they had disparate impact. And you would have to demonstrate that under Washington B, Davis and Feeney that there’s some animus that motivates this. But as you said, in Roe versus Alexandria, a 100% impact doesn’t necessarily mean animus. We still have to determine. Discriminatory. What? What did we say? And something about if you prevent people from wearing yarmulkes, you know that it’s discrimination against Jews. Isn’t that what we said? Embrace same thing here. Versus Alexandria case that I was talking about was the one that affected abortion and the ability to have that which. I’m sorry, that kind of said what I said. Right.


Melissa Murray I’m glad you played this clip, Leah, because, again, we have been saying for a long time that despite Justice Thomas’s concurrence in Dobbs, the fact of rolling back same sex marriage is probably not imminent right now. But this is really a very imminent threat being able to completely constrain the way that same sex couples exist in the public sphere is actually a quite immediate and imminent threat. And, you know, I’m not sure that people appreciate that, but back to Waggoner. So Waggoner couldn’t even hold down this distinction between status and conduct. So let’s play a clip of her discussing this point with Justice Barrett.


Clip Ms. Waggoner, can I ask you a question about a heterosexual couple? So in response to Justice Sotomayor’s questions, I took it that your website where you say, why a wedding website you go through and it seems like careful. Ms. Smith was careful to say things like, I fully customize the look, feel, same message, color palettes, etc. And then there’s the engagement story page and inspired by a page, inspired by you and written by Lorie that captures and conveys the cherished storybook of your love. So I want to ask you a hypothetical about a heterosexual couple that comes to your client and their wedding story. You know, that they want to write under the engagement story. Page goes like this We are both cisgender and heterosexual, but that is irrelevant to our relationship, which transcends such categories. We knew we were soulmates from the moment that we met and on and on. Would your client publish that cite? Yes, she would publish the site because her objection, assuming that the marriage is between a man and a woman, she would publish it and that there’s no message, even though that narrative, I assume, is inconsistent with her biblical views about marriage.


Melissa Murray I really love it here when she just basically conceded that she would publish a wedding Web site for a straight couple to celebrate gay marriage. But she is 100% not discriminating on the basis of status. And even Justice Barrett seemed to want to phone a friend for her to intervene so this was like, I thought, a very devastating admission. But like, folks were right there with brooms and dustbins trying to clean this up, like clean up on aisle six.


Kate Shaw Yeah. And just to take a beat on the how devastating an admission it was. Right. Just to be crystal clear, this should mean that Smith loses, right? It should be kind of case ending, because it means that she actually is discriminating against people because of who they are, not because of what they’re doing or what message they’re allegedly sending. Because and I pathetically this is a straight couple sending the same message, but the initial reaction is, oh, their website is fine. And as you just alluded to, Melissa, Barrett 100% understood how devastating this admission was. And she, you know, specifically comes back to this question and is like you misspoke earlier, right? Your client wouldn’t publish that Web site. And at that point, the lawyer was like, Oh, yeah, right. Amy, she wouldn’t publish that Web site is what I meant to say.


Melissa Murray My bad.


Leah Litman She’s like that. That was the off the record part of the oral argument. Just on background.


Kate Shaw Back on the record, I definitely wouldn’t publish that website. So we’re all in the same place.


Leah Litman Yeah. And a few thoughts on this. You know, aside from the fact that you basically had ADF conceding this case involves discrimination on the basis of sexual orientation and status rather than whatever made up kind of discrimination they’re trying to cloak it under. It’s just like, okay, you want to call this discrimination on the basis of like conduct or message, but like which men want to marry men? Which women want to marry women? Sexual orientation is defined by intimate attraction and intimate relationships with people on the basis of sex. Like, even if you can define this as conduct, it is inextricably bound up with identity and status. It’s just so stupid.


Kate Shaw Well, the stupidity seems somewhat lost on Neil Gorsuch, who did continually try to rehabilitate it, although I think pretty inartfully this theory. So let’s play a clip here.


Clip Except for that runs into all those stipulated facts in which the plaintiff has said repeatedly that she will serve everyone and she would deny everyone this kind of website. She but denying everyone, everyone regardless of status. Right. But it rights.


Melissa Murray Neil, my guy. Seriously, she would deny a same sex wedding website to everyone, apparently. But I mean. Who is requesting a website for a same sex wedding? Ostensibly people having same sex weddings. And of course, to paraphrase the indomitable Elena Kagan who adverted to another case, Bray, who is wearing yarmulkes, like if you are going to discriminate against people wearing yarmulkes, who are you actually discriminating against? And that kind of was the point here. There are some kinds of conduct that are so inextricably intertwined with identity that to discriminate on the basis of conduct is to discriminate on the basis of status.


Kate Shaw And Deputy Solicitor General Brian Fletcher, who had the last argument in this case in defense of the Colorado statute, I thought very explicitly and really effectively made this point. There’s also the stipulation in this case that Smith wants to post on her company website. Quote, I won’t make same sex wedding websites. And in some ways, that kind of gives away the game or because it collapses whatever imaginary distinction there might be between status and conduct. It almost feels like Smith’s entire argument seems to maintain that, you know, not just weddings, but same sex couples and like LGBT individuals, are somehow conveying a message by their very existence. You know, like that’s, I think, like the insidious core of the argument that they’re making.


Melissa Murray It’s also a pretty damning admission. It’s sort of like, you know, the very existence of gay people is what I find to be the false or offensive message.


Leah Litman And it’s a false or offensive message that she says offends like her religion. And it reflects to me like a somewhat impoverished view of religion. Like really the core feature of your religion is that you don’t want gay people to get married like that’s it. It’s not like service to some community. It is not helping those in need. It’s like a defining feature of my religion. Like something that is inextricably linked to my religion, is being opposed to people of the same sex getting married. And it’s just.


Kate Shaw The fact that at its core, this is really about an objection to gay people. That is one of the many reasons this case is just so dangerous and that it could give license to discriminate against LGBTQ people in every corner of public life. I mean, that’s what’s at stake, I think, in this case.


Leah Litman Yeah. I mean, the entire argument had this horrible tenor to me, like a debate about the legitimacy, objections to queer people’s identity or like various parts of their identity, and like which parts can you really legitimately object to? And it’s occurring at this time where people are demonizing LGBT persons, particularly trans people. And the court is like legitimating this objections as all of these things are happening.


Melissa Murray One of the things we’ve highlighted in earlier episodes is that the question of religious accommodation isn’t actually a question here because the court didn’t grant surgery on the free exercise question. It’s instead a speech case. And the idea is that the state of Colorado is making her say a message with which she does not believe on the basis of her religion. Does that make it even more profoundly mean? Like if she wins here, can you basically just say any kind of law that requires you to offer fair treatment to everyone is on any basis is basically forcing you to say something with which you don’t agree. It’s kind of a heckler’s veto for everyone.


Kate Shaw Yeah, I mean, it’s funny, I sort of had the same thought as I was listening to the arguments. I remember we speculated a bit about why they might have taken the speech question, but not the religion question in this case. And I was like, Wow, one really diabolical explanation that we actually didn’t.


Melissa Murray We didn’t even see this.


Kate Shaw So they could do the most expansive and maximalist version of like, everybody gets an exception to any public accommodations law. Like, honestly, as cynical as we sometimes are about the court, I think we genuinely did not.


Melissa Murray We missed it.


Kate Shaw That might be what’s afoot.


Melissa Murray You got us. You got us.


Leah Litman Have to be harsher next time.


Melissa Murray Next time, we’ll get there. To go back to the point that Leo was making. I want to highlight this exchange between Justice Gorsuch and Colorado Solicitor General Eric Olson that really, again, focused on this question of defining the plaintiff’s religious beliefs in really singular terms, the opposition to the existence of queer people. So let’s hear that.


Clip Know what they say is we will not sell to anyone, anyone a message that I disagree with as a matter of religious faith. Just as a speechwriter says, or the press release writer, the freelance writer says, I will not sell to anyone a speech that offends my religious beliefs. But here they are defining their service by excluding someone based on their that’s their religious belief. Well, Colorado changed the religious belief. Right.


Kate Shaw And if that weren’t bad enough, the justices at other points in the argument did seem to understand that identity is bound up inextricably with certain things. Like in the exchange we just played, Gorsuch is basically like, but objecting to same sex marriage is a core part of this person’s religious identity. You can’t separate the two. And yet. Somehow these justices believe you can separate same sex weddings or same sex marriage from sexual orientation. Like, come on.


Leah Litman This is what I meant. But it’s such an impoverished view of religion and it’s just like, Really?


Kate Shaw Yeah.


Melissa Murray In this oral argument, nobody really focused on the realpolitik of sexual orientation discrimination and its impact. Nobody talked about what’s going on about, you know, the shootings at gay nightclubs. And, you know what this might mean going forward for actual gay people in the world. And I think part of that is because there is no factual record here that would even give us a couple of gay litigants like we had in Masterpiece Cakeshop who we could talk about and whose injuries we could probe and who we could connect to. Lorie Smith’s refusal to provide wedding related services. And so, you know, I think a large part of how this argument came off and why it was so like, you know, bonkers in terms of the hypotheticals is that there are no real facts here. I mean, when you talk about just disability and this idea that having a true case or controversy gives you a set of concrete facts on which you can actually make a decision. This is kind of what they’re talking about. Everything here is totally speculative and hypothetical.


Kate Shaw Totally agree with that. And I think that our friend Dahlia Lithwick had a great column in Slate making like basically precisely this point that is part of the reason they were so focused on Lorie Smith as the beleaguered victim here and how they were able to stay so focused on her as opposed to like the queer people who will be impacted by the court’s likely decision is that there actually weren’t any other parties or players who were concretely involved in this particular dispute, although they will be, you know, inevitably impacted by whatever the court decides. But whatever jurisdiction is for jumps.


Melissa Murray We got a new sweatshirt.


Leah Litman Yeah. Let’s move on to the next big theme. And that’s the difficulty and really the impossibility of ruling for the would be website designer Lorie Smith in a way that doesn’t lead inevitably to providers having a constitutional right to refuse service to customers on the basis of characteristics or conduct wing like race, sex, religion, disability. You know, Kate, I think you have said on a previous episode that this case could auger in kind of the end of the American experiment, or maybe that framing is a bit strong. But the prospects here are like genuinely dystopian.


Kate Shaw Right. Because we’ve been talking to this point about the impact on LGBTQ people. But I think as a lot of the exchanges and we’ll get to some of them in a minute, made crystal clear the logic of this case is going to extend essentially to everyone who otherwise, in the absence of this intervention by the court, would enjoy protection under public accommodation laws as a matter of federal law and many state and local laws. So I don’t think this I don’t think the court is going to be able to take it in some ways, like it’s incredibly problematic either way. Like either they could try to say it’s okay to discriminate against gay people in a way it isn’t okay to discriminate against other groups, which would be horrifying. And I don’t think they’re going to try, although as we’ll talk about, there were some kind of like allusions to that. So that’s unimaginably horrible. And it’s also, I think, really horrible to contemplate them saying, well, you know, anytime you have an objection to anyone on the basis of race or religion or sex or disability or sexual orientation, you don’t have to comply with generally applicable nondiscrimination laws. So both of these prospects are like really chilling. And I think they’re both real.


Melissa Murray I think they are real. And the liberal wing of the court really picked up on this. Justice Jackson, who, as we know we’ve talked about, is part of an interracial couple, talked about discrimination against interracial couples and the way in which at least initially a lot of the objections to interracial couples were rooted in religious objections. So she brought that up. Justice Sotomayor also peppered Kristen Waggoner, the lawyer for the Alliance Defending Freedom, with questions about whether ruling for Lorie Smith with opened the door to those who don’t wish to serve those with disabilities because they have beliefs about eugenics. Let’s hear that clip.


Clip 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 to disabled people getting married, telling their story of how they got in low. I’m not going to serve those people because I don’t believe it’s that they should be married. What’s the difference between that? And I don’t believe black people and white people should get married. What matters is what the objection is that the speaker is being asked to create. And whether the. If I just that’s my objection. I don’t believe they should be telling their story. If you don’t believe they should be telling their story and what they’re asking you to do is tell their story, then you don’t have to do that.


Kate Shaw I thought this was really important. And Sotomayor brought up disability on a number of occasions, and I thought quite strategically, and I think it was strategic because there is a position and Smith’s lawyer didn’t take it, you know, really explicitly, although she came close a couple of times. But that might respond to the kinds of questions about race and race hypos of the sort that Justice Jackson was posing. With a response that says that race is different under the Constitution. And so government has an interest in preventing discrimination on the basis of race. That just distinguishes the race hypos from the sexual orientation hypos. But you can’t say with disability that the Constitution singles out individuals with disabilities for special protection. At least the Supreme Court has not said that in the same way it has with race. And so I think it’s important to press on it, because Waggoner is basically saying it in this exchange that they could refuse on the basis of some kind of eugenics commitment. And if that’s the case, then this case, you know, is not by any means limited to sexual orientation.


Leah Litman [AD]


Melissa Murray Let’s move on and consider some of the other hypotheticals that were offered. And again, this is where things really took a turn. I think so. On the question of race specifically and whether this issue would open the door to discrimination on the basis of race and other characteristics, Justice Jackson offered up another great hypothetical that surfaced again and again, including in a bizarro Alito world, how that would play out. So let’s play that clip here.


Clip Can you give me your thoughts on a photography business in a shopping mall during this holiday season that offers a product called Scenes with Santa? And this business wants to express its own view of nostalgia about Christmases past by reproducing classic 1940s in 1950s Santa scenes. They do it in sepia tone and they are customizing each one. This is not off a rack. They’re really bringing the people in and having them interact with Santa children because they’re trying to capture the feelings of a certain era. But precisely because they’re trying to capture or capture the feelings of a certain era, they’re policies that only white children can be photographed with Santa in this way, because that’s how they view the scenes with Santa that they’re trying to depict.


Melissa Murray I will just say initially I found it really frustrating that as much time as was spent laying out this hypothetical and laying it out quite clearly that Waggoner never actually answered this question. She seemed to be saying that this wouldn’t be entitled to First Amendment protection, although it seemed to me it was clearly expressive, like sepia toned. It’s a Wonderful Life pictures. But she didn’t even really offer a direct answer to that. And the justices were so busy interrupting her and interrupting each other that she kind of skated off scot free, never having answered it. And it was a really good question and a quite devastating hypothetical.


Kate Shaw I think that to the extent that she said anything and I totally agree, she’d like never they just didn’t pin her down and force her to give a direct answer. At one point, she did come pretty close to saying that you can discriminate on the basis of sexual orientation in a way that you can’t discriminate on the basis of race. So let’s play that clip here.


Clip I am sure, and that the message isn’t in the product, it’s not in the photograph. But even if this court were to find that it was, the court would still have to protect the speech and the court could draw a line in a different place, as it has juxtaposed Loving and Obergefell in terms of the beliefs between same sex marriage.


Kate Shaw And here I think she is basically saying that opposition to gay marriage has this like protective cloak around it because of some Obergefell dicta that obviously Alito is really focused on. And we’ll come back to some of his invocations of that, doctor. But that that’s not true about loving right. The case, finding a constitutional right to marry someone of a different race. But then Waggoner also sort of seemed to say the court would have to protect the speech, meaning she would have to protect the photographer who doesn’t want to let the black families participate in the staged photographs. So I genuinely didn’t know what her answer to this was. And I find it maddening because it’s such an important question.


Melissa Murray Well, I wonder if this was just genuinely like they were oblivious and like so busy, like sort of interrupting each other that they didn’t pin her down and it was just sort of an oversight. Or was this like a case of she had six co-counsel up there sort of steering the conversation in other directions?


Leah Litman Yeah. And in just thinking about the implications when we’re asking, you know, could this case open the door to discrimination on the basis of race or against interracial couples? Like just kind of think about where the GOP is now. Like if you think there isn’t going to be a case about some goods or service provider refusing to serve an interracial couple, you know, Donald Trump is having dinner with Nick Fuentes, white supremacists. Ron DeSantis is literally engaging in human trafficking to terrorize migrants. And it’s not so far off to imagine some GOP star saying, like, I don’t want to serve an interracial couple or I refuse to do business with immigrants or, you know, not an immigrant because of their status, just someone whose conduct included being born in another country, whose existence is expressing the message that you can be human and born in another country. And also like this line that like race is somehow different. I mean, the First Amendment does not only protect like good, legitimate, honorable speech with like good faith objections. So it’s just it’s yeah.


Melissa Murray I mean, Leah, taken to its logical conclusion, this means that Reverend Schenck does not have to find good matches for an interracial justice couple. And and maybe that’s good for democracy. I don’t know. I don’t know. Maybe there’s a silver lining here. I don’t know.


Leah Litman $5 thats happening in the off the record justice discussions.


Melissa Murray Anyway, there also a really weird moment where Kristen Waggoner revealed herself to be something of a Broadway aficionado, and she also seemed to suggest that Lin-Manuel Miranda would endorse her argument. So at one point, she again was attempting to press this claim that her argument in favor of Lorie Smith actually served pluralistic values and that these values existed on both sides. So she made this point that the Hamilton production wanted a multiracial cast and to blunt an application of the civil rights laws would have prevented that. And so the TLDR, it seemed to me was Lin-Manuel Miranda wants this and I just wanted to know, like if anyone could get comment from Leslie Odom Jr or Renee Elise Goldsberry because I’m sure they were both like, What the fuck am I doing in here? Like, how did we get here.


Leah Litman This is getting at just this utter, willful confusion about how public accommodations law works? Because, you know, ADF Waggoner the justices seem to be saying, well if Lorie Smith doesn’t prevail, then public accommodations law would prevent Lin-Manuel Miranda from having a multiracial cast for Hamilton. And it’s possible the justices truly do not understand how public accommodations law works or what are protected statuses under public accommodations law. It’s like they kept wanting to ask a question, like, imagine a law that isn’t a public accommodations law, like requiring a speechwriter to write for an opposing political party. But that is not public accommodations like public accommodations. Law is like selling a muffin or operating a hotel, not writing a speech. And you can’t, for example, say like a public accommodations law requires a judge to express views that they disagree with or write opinions that they disagree with, because writing speeches or creating a play or issuing opinions are not public accommodations offered to the public writ large. They’re not like commercial services. And they know this. The justices know this like a few terms ago, they specifically invoked this argument in city of Philadelphia versus Bolton when they narrowly construed a public accommodations statute to say certifying foster care couples was not a public accommodation precisely because it was selective discretionary. Right. Not generally open to the public. And it’s just it’s so dumb.


Melissa Murray But this is why they have to.


Kate Shaw Matchmaking services are not a public accommodation?


Melissa Murray No, that that that’s art. That’s art, Kate. I mean this is why they are trying to blur that line between sort of ordinary goods and services and that sort of other kinds of professional services or blurring the line between expression and speech. Right. I mean, because they want to be able to say that this is outside of the scope because it requires this sort of like it’s expressive or sensitive or, you know, requires this kind of discretion. It’s not a croissant. It’s not a muffin. It’s something else, when in fact, it might be a croissant. It might be a muffin like. And Justice Kagan made that point, at least at the beginning of the argument with, you know, what about a just a fill out the form kind of website? Like that’s not expressive anyway. Are we getting to the good stuff now?


Kate Shaw I know there’s so much more to say even before we get there, but I do feel like we’ve all been very patient and we need to now arrive at the point when Sam Alito enters the mall.


Melissa Murray Sam-ta-Claus, here comes Sam-ta Clause.


Kate Shaw We were debating whether this is like his so jumped the shark that like we can’t even deploy nicknames. But Melissa, you just sprung Sam-ta Claus on us. That was I was not prepared for that. Seared into my brain.


Leah Litman So, let’s play the clip and then let’s have a little chat about.


Clip It. Just Justice Jackson’s example of the Santa in the mall who doesn’t want his picture taken with black children. So if there’s 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 the Ku Klux Klan outfit, that that black Santa has to do that? No, because Klu Klux Klan outfits are not protected characteristics under public accommodation laws. And presumably that would be the same Ku Klux Klan outfit, regardless whether the child was black or white or any other characteristic. Yeah you do see a lot of black children in Ku Klux Klan. Right? All the all the time. Supposed I mean ugh. Can I can I can I. Yeah, yeah. Is that all right.


Melissa Murray So I’m just going to say the war on Christmas is obviously when Black Santa takes on the white walkers of the KKK. Right? Like, what other explanation is there for this whole colloquy?


Leah Litman You know, I’m usually the person who is propounding different nicknames. For Samuel Alito. But I think it is worth unpacking just the different layers of horror that were at play in this comment. I mean, on one level, it’s like, well, you know, is it racist to laugh about dressing up black children in KKK costumes?


Melissa Murray Edge case. Edge case. Edge case.


Leah Litman Yeah, right. Well, we’ll get to the edge case moment in a second. And it’s like, how far away are we from? Sam Alito authoring an opinion that presents the originalist case for Santa being white. And, you know, based on this argument, it appears not far. And, you know, Melissa, as you were just alluding to, according to ATF, Santa turning away minorities is an edge case like the lawyer here twice really does say it’s either close or the photographer can turn away black families. So let’s play that clip here.


Clip I say that that same clarity of the message isn’t in that photo, but there are difficult lines to draw. And that may be an edge case, but this is not.


Leah Litman And Sam Alito like really thought he won the argument with this hypo because it’s not just that he brought it up once he did it again he’s like and now I would like to go back to my black Santa example and again, the specter of this happening at the same time that, you know, the Donald Trump is like elevating like white supremacists and Twitter’s relaxing its content moderation policies in ways that all evidence suggests is causing an enormous uptick in white supremacy, racism, antisemitism on the site. And it’s just happening. A one for a street, too.


Kate Shaw And, I mean, what was happening at 1 First street? Again, it is like it has reverberated since the argument on Monday. But I do feel like it’s worth spending a little bit more time on it because. So Jackson offers this historically grounded example of white merchants wanting to exclude black and other nonwhite customers. And she, I think, very deftly constructs this question to make it about artistic production. So it does fall squarely within what Smith is arguing. And rather than like pause to think about the implications of all of this, where does Santa where does Bad Santa as mine Sam Alito’s mind go? He goes to like children in Klan outfits at the mall. Like what malls does he frequent?


Melissa Murray I mean, I feel like I have to interject here to recuperate the Garden State, because there are a lot of malls in New Jersey. And I’ve been to many of them, including one of my favorites, the mall at Short Hills. And I have to say, this is not happening at the mall at Short Hills. So I have to conclude that this is only happening in the mind of one Samuel Alito. Right. So and to be very clear, this is not a normal place to go. Like this isn’t I didn’t think this was a normal place to go after that hypothetical like you go from It’s a Wonderful Life immediately to black kids in klan costumes, leaving aside the whole idea that, like his understanding of white culture is the Klan. I mean, that’s kind of part of what’s going on here. And did I miss that or did I make that up?


Leah Litman Nooooo. I mean, because like.


Kate Shaw Totally


Leah Litman This was part of the insanity. It’s that to him, there’s a correlation between KKK, like kids in KKK costumes and like being white such that maybe people in KKK costumes, like, are protected under public accommodations law because it’s a proxy for being white. And also, he seems to suggest that Santa would only be offended by this if Santa was.


Melissa Murray Were black. Yeah.


Leah Litman It’s just like. No, like, Santa doesn’t want. I don’t know, I’m Jewish, maybe. I don’t know. But, like, it feels like Santa is not cool with KKK costumes.


Melissa Murray The other part of this is like, truly gross was that, you know, on Twitter, there were conservative defenders who are like Justice Alito did not bring up the black children in KKK costumes first. It was Justice Kagan. Justice Kagan was the racist here. And if you listen to the clip, that wasn’t what happened. Like Justice Kagan wanted to clarify Solicitor General Olson’s remark that the KKK costume, the wearing of the KKK costume wasn’t a protected characteristic, and that would be the case, whether it was a black person or a white person in the KKK costume. But she didn’t, like, change this. So, like, you know, I have a great idea. Let’s talk about black kids in Klan costumes. Like, that was all our boy, Sam Alito, fresh off a facial, deciding to bring chaos to this oral argument.


Kate Shaw Just like again, to to think about the analogy that he is drawing right. With this hyper, because Jackson is talking about a black family at the mall and this like fake character hypo that Alito poses does feel like it’s positing in equivalence between that family and kids, whether they’re black kids or white kids in Klan outfits like these are not normal modes of legal reasoning or argumentation. They just aren’t.


Leah Litman I mean, the hypo was so insane. It made it into the congressional hearings later in the week about Operation Higher Court and the Hobby Lobby League. So here is Representative Mondaire Jones in that hearing discussing this.


Clip During oral argument this week in a case called 303 Creative, which threatens to undermine the rights of LGBTQ people in our economy to not be discriminated against. Justice Alito joked about black children dressing up in KKK costumes. His remarks caused many Americans to question his mental fitness. But even before his antics this week, Americans had reason to question his integrity.


Leah Litman Also, I wanted to say something about the laughter in the clip, like the laughter you can hear in the courtroom. You know, on some level, I’m sure some of it is an uncomfortable laughter. And I say that as I am an uncomfortable laugher. But when I do that, I say, just so you know, like sometimes my response to discomforting situations is to laugh. So it’s clear. I’m like not laughing with someone, and it just feels like this horrible microcosm of a Supreme Court bar that has never practiced the muscle of questioning someone with authority, and instead it has just become so normalized to look up to these justices and treat the court as normal, that when you have a justice making this like horrible hypothetical with like racist and he’s like laughing about it, that like, you laugh too. It’s just like practice speaking up and saying something, people. It’s just horrible.


Melissa Murray If you see something, say something.


Leah Litman Right. A news flash. When you see Sam Alito, you are seeing something. Say something.


Kate Shaw Like this actually feels like an opportune moment for an errata from last week. So we have to follow up on something that we said about the Percoco argument and Leah was out, and so I blame Leah’s absence for our potential oversight.


Melissa Murray I did say that. I thought this is more on the Kavanaugh level and not the Alito level. So I just want to flag that.


Kate Shaw That’s true. That’s fair. That’s fair. Anyway, for folks who missed last week’s episode, we thought that a question that Alito asked about a term limited governor who was then replaced by his wife, but where the governor was really pulling the strings might have been a reference to a Clinton conspiracy theory. But an astute listener wrote to us suggesting that the term limited Governor Alito was referring to might actually have been former Governor George Wallace. And honestly, in light of the conversation we’re having today, that actually does sort of feel like it checks out.


Melissa Murray If you don’t remember, George Wallace is the segregationist governor of Alabama who stood for his inauguration on the steps of the Alabama Capitol and said famously, segregation now, segregation tomorrow, segregation forever. And he later ran for president in 1968 on a segregationist platform. And so the real question and the reason why I raised this is why is all of this on Sam Alito’s mind. Also, I would like to bring up pop culture aside. Angelina Jolie won a Golden Globe for her portrayal of Cornelia Wallace, who was George Wallace as much younger wife and the ostensible puppet in his third term as governor. And she won that for her 1997 portrayal of Cornelia Wallace in the biopic George Wallace with Gary Sinise. And it’s a really good. So if you don’t know anything about George Wallace, that’s a great way to get up to speed.


Kate Shaw I’ve never seen it.


Melissa Murray It’s great. It’s great.


Kate Shaw Yeah. So there’s been a lot of Galaxy Brain on display already in this conversation. But speaking of Galaxy brains, we have to at least briefly talk about Alito’s discussion of the Josh Blackman amicus brief. Let’s just do it briefly, but we have to talk about it.


Leah Litman Just when you think things can’t get any weirder. Alito raised some hypos from an amicus brief filed by law professor Josh Blackman.


Melissa Murray So we’ve spoken about this law professor before. This is the person who wrote a post on The Reason blog. I think it’s also call the Volokh Conspiracy Blog about how Jews or at least reform and maybe even conservative Jews as well, don’t actually have real religious beliefs and therefore cannot have religious liberty claims. And so basically it was sort of an end run around the religious liberty grounded objections to abortion restrictions or prohibitions. And we flagged it before, as you know, completely cynical, really. GROSS Possibly, definitely anti-Semitic take. But this is the guy that Justice Alito is quoting from. So were you surprised? I don’t know this after everything else that had been said in this oral argument, this it in shock me at all this I just chalk this up and put it on my bingo card.


Kate Shaw It wasn’t the peak of weirdness, but it was pretty weird. So let’s play this colloquy between Justice Alito and Justice Kagan, sort of inspired by some hypos in Blackmon’s brief.


Clip An unmarried Jewish person asks a Jewish photographer to take a photograph for his JDate dating profile. It’s a dating service, I gather, for Jewish people? It is. All right. Maybe Justice Kagan will also be familiar with the next website I’m going to mention. So next, the Jewish person asks a Jewish photographer to take a photograph for his dating profile. I’m not suggesting I mean, she knows a lot of things. I’m not suggest. Okay. Does he have to do it?


Leah Litman Is like, is it funny to suggest your female colleague is on or is familiar with a website that enables men to cheat on their wives? I mean, look, as most women who have been subject to this kind of humor, air quote “humor” in the workplace, know like it doesn’t make the problem go away. When the person then says, well, I’m not suggesting or this is just a funny joke, ha ha. Like it invites people to think about you that way. It is extremely like dismissive just. Ick


Melissa Murray Also is it super sus that you don’t know what JDate is, but you do know in a very clear way what is? Relatedly, is it super super sus to broach such a hypothetical and connect it to your female colleague after a New York Times story drop, suggesting that a Reverend Schenck, for example, was deploying his best couple matching matchmaking skills to influence you? I mean, this is all giving like 1970s key party vibes. Like, am I. Am I missing something? This is weird. Why would you even say this?


Kate Shaw Key Party with?


Melissa Murray Not a key party with Elena Kagan.


Kate Shaw Not inviting Justice Kagan. To be quite very clear,  we’re not dragging Elena into the key party.


Melissa Murray But why do you know all of this? And why do you think you can talk about it in oral argument of all places?


Leah Litman I’m just worried that, like with each passing week, we are getting a closer and closer look into Sam Alito’s mind. And it’s somehow even more horrifying than than I thought.


Kate Shaw Yeah. And in terms of all of these insane hypos, there is sort of a serious point to make about them, which is that they kind of all go back to the absence of an actual factual record here. Right. Like this case is in this pre enforcement posture. If there were real questions about what the Colorado Supreme Court might do and like what the law does and doesn’t cover, they could certify question to the Colorado Supreme Court, but they don’t. Right. They’re just using these hypos to distract from real people and real harm. And, you know, sometimes hypos can be helpful here. They were like not Jackson’s I think were very helpful, like lots were, but many of them are just a distraction.


Leah Litman So between Kagan and Sotomayor and Jackson, you know, Kristin Wagoner had a pretty rough go. The first part of the argument, you know, one clip I wanted to play is this exchange where Waggoner was trying to make excuses for why she didn’t answer Justice Kagan’s hypotheticals and Justice Kagan was not having it. So let’s play that clip here.


Clip She provided a number of hypotheticals. So in terms of assuming its. Just one. The hypothetical.


Melissa Murray Just the one, you could answer it.


Leah Litman Not that hard, bitch.


Melissa Murray I also wanted to bring again, this is in the vein of really wild statements. This occurred during the argument presented by Colorado Solicitor General Eric Olson, which is also where the Ashley Madison hypothetical came up. And I think that’s why this sort of skated under the radar a little bit. So Justice Gorsuch really wanted to revisit the plight of Masterpiece Cakeshop BAKER Jack Phillips, who remember, won his SCOTUS case and the court punted, saying that he had experienced animus or discrimination at the hands of the Colorado tribunal that initially heard his case. But Justice Gorsuch reentered the chat to note that even after Jack Phillips won his case, he was required by Colorado to undergo compliance training to make sure that he understood and would comply with the terms of the Colorado public accommodations law. And Justice Gorsuch insisted that this kind of compliance requirement, this training requirement, was akin to attending a reeducation camps. So let’s hear that.


Clip Why Mr. Phillips did go through a reeducation training program pursuant to Colorado law, did he not, Mr. Olson? He went through a process that ensured he was familiar. It was a reeducation program, right? It was not a reeducation program. What do you call it? It was a process to make sure he was familiar with Colorado law. Someone might be excused for calling that a. I strongly disagree. Justice Gorsuch. Thank you, Mr. Olson.


Kate Shaw And I mean, wow, like this, I think flew under the radar a bit like the Aryan Cross at the beginning because people were just like reeling from Black Santa and. Yes. And the kids in Klan gear. But I don’t think we should overlook that. Equating a training to bring you up to speed on state anti-discrimination principles, trainings that many people have to do all the time. Trying to analogize those to reeducation camps, which I gather is a reference to communist prison camps.


Melissa Murray Or the Cultural Revolution and Maoist.


Kate Shaw Communist prison camps in Vietnam. I think Maoist camps in China like, you know, either way, that’s what reeducation camps refers to. And I think it just requires some pretty profound historical illiteracy and also kind of reveals something about the sort of the intellectual milieu that, of course.


Melissa Murray This is straight out of Fox News that talks about DEI trainings as like reeducation. I mean, that’s where this is coming from. So this is all part and parcel of that.


Kate Shaw So do they say reeducation camps on Fox News? They might. I don’t know.


Melissa Murray I mean, I’m not listening to Fox News all of the time. But I do think that conservative groups, when they talk about these mandatory trainings in the wake of MeToo or that require D&I training, they talk about them as like indoctrination, reeducation and things of that nature, and again, equate them with an over encroaching state.


Leah Litman Also when you say something like this and you’re still only like the second or third most offensive justice in an oral argument. I mean.


Melissa Murray I think Justice Alito got one and two here.


Leah Litman Exactly. Exactly like one for Black Santa and two for Ashley Madison and three Neil Gorsuch.


Melissa Murray Neil could only hope for a bronze here.


Leah Litman Right.


Melissa Murray And like, dude, you’re going to have to do a triple salchow if you want to win gold here. Okay. All right.


Kate Shaw There is there was one point I have to say when you know, Justice Jackson, who obviously was very hard at Lorie Smith’s lawyer at one point, though, she did seem to maybe be floating like a Masterpiece Cakeshop esque compromise that made me a little nervous. Honestly, I don’t know that she was at all committed to it, but let’s play that clip.


Clip Here isn’t part of the problem trying to figure out whose statement of opinion is when you have a public accommodation, when you have an artist for hire. Right. Ordinarily would have an artist who even though they’re making custom, you know, things, they’re making custom things based on their own views and opinions. And this is my art. But when you have an artist for hire and people come to them and say, Here’s what I’d like you to make, there’s a question about whether what they make is their statement or the customer statement. So if it was clear that it was not their statement, let’s say the gay couple comes and they say, we want God bless this union on our website. And the Web designer says that’s fine. But you understand, under our name, at the bottom, we say on every website, we believe that marriage is only between one man and one woman. And we’re going to put that on your website. Justice Alito says maybe that person will walk away and maybe they will. But the point is, if they do that in every situation and it’s clear that it’s not their statement, then do we solve the difficult Justice Kagan problem of like who’s who’s making an expression here? We have that as part of our standard in the holding. Like, let’s say we we don’t want to go as far as you’re suggesting, perhaps with the holding in this case. Could it could it be that we would say, you know, the First Amendment protects the Web designers abilities to, you know, not have this kind of a same sex wedding website, only if it would be clear from a, you know, a neutral observer or from the audience that having that website is their own expression.


Kate Shaw So, I mean, we’ll see. Right. Obviously, Justice Kagan and Justice Breyer were on board with what the court did and Masterpiece Cakeshop, which was again on a very narrow sort of grounds, as Melissa just described, to side with Jack Phillips. But to send the case back and I think there were a lot there was a lot of puzzlement at the time that Breyer and Kagan joined the conservatives there. And so I think it’d be unfortunate if this case involved some sort of similar disposition. I mean, an off ramp would be great, obviously, given how kind of cataclysmic the substantive options are here. But punting for another day doesn’t seem to be the answer to me either.


Melissa Murray I also wanted to play another clip of Justice Alito. *laughs* In addition to Justice Jackson, perhaps floating this compromise. I think one of the reasons why she might be thinking of compromise, if she is thinking of compromise, is because Justice Alito was just really hammering the idea that this language in Obergefell around religious believers and their sincerely held objections to same sex marriage is where this case begins and ends. So let’s hear Justice Alito on that point.


Clip In Obergefell, did the court say that religious objections to same sex marriage are the same thing as religious or other objections to people of color?


Kate Shaw Also, I wanted to flag. At one point, Justice Alito basically elicited an answer from Colorado Solicitor General Eric Olson that revealed that Colorado actually was not going to try to stop Smith from including messages on her website that she disapproves of same sex marriage. And now you might think that Sam would approve of this, right? As it shows the state trying not to intrude anymore on the expressive activities of its merchants than required by the important need to prevent the kind of discrimination that, you know, actually allowing merchants to refuse service would represent. But instead, Alito kind of had the opposite reaction, which is that he had this kind of hissy fit about how narrow the state’s objection was. So let’s play that clip here.


Clip What I’m trying to understand is the breadth of your argument. And what I get is that you’re making a tiny sliver of an argument so the website can put anything on its website, even something that will blatantly or subtly tell a same sex couple. This is not a service that I want. They can do that.


Leah Litman Sam Alito is America’s sorest winner. Like he just can’t stand to win unless he wins in the biggest way possible. And everyone tells him, like how brilliant and principle his win is. It’s just. Over it.


Kate Shaw So we’ve talked at length, obviously, about Smith’s argument. We’ve talked about Colorado Solicitor General Eric Olson, the last advocate up to the lectern. Brian Fletcher, the deputy solicitor general, I thought was really strong. What’d you guys think?


Melissa Murray I thought he was great.


Leah Litman  Yeah, I thought he was really great. Particularly on bringing out the similarities between Lorie Smith’s challenge in this case and the Supreme Court’s prior decision in Rumsfeld versus fair. When it had said, you know, law schools that have an objection to the military’s don’t ask, don’t tell and recruitment policies are still obligated to give access to the military as part of their employment recruiting for law students. And Deputy SG Fletcher noted that that access oftentimes included writing messages, right. Emails and like putting out notices that says, like, here’s where this employer is going to be. Here’s how you meet with them and like providing services for them. And I thought he was really great at holding a line that like to the extent there’s any speech here, it is only speech that is incidental to conduct to the provision of goods and services that has to be given out without discrimination on the basis of status and, you know, correcting. Justice Gorsuch when Justice Gorsuch, like there’s radical agreement here on the principles and Fletcher is like, okay, what are you smoking? And yeah, so I thought he’s really great.


Kate Shaw In the very brief rebuttal, Lorie Smith’s lawyer like invoked kind of the specter of creeping authoritarianism, which, you know, that the Colorado anti-discrimination law represented. And my reaction was just like, yes, but not how you’re suggesting, like literally the opposite of how you’re suggesting.


Leah Litman Well, it was like one of Justice Kennedy’s final opinions on the court was this concurrence in NIFLA versus Becerra, in which he likened California’s law that required unlicensed crisis pregnancy centers to disclose the fact that they were unlicensed to the creepy and specter of authoritarianism, while like within the same week, he voted to uphold President Trump’s Muslim ban. I mean, just the dissonance there is off the charts.


Kate Shaw Right. Particularly when you have sort of wake of DOBBS, individuals being denied access to abortion care and being required, compelled to carry pregnancies to term.Yeah


Melissa Murray It just seems really clear people have very different ideas about what creeping state authoritarianism is.


Leah Litman Force, birth? Nope. Not authoritarian.


Melissa Murray D&I training. Uhhuh.


Leah Litman Yep.


Melissa Murray Yeah. That’s that’s definitely what fascists do. This was literally a rollicking two and a half hour ride where you are literally strapped into a roller coaster that was made of popsicle sticks. And you thought you were going to die several times. And it just kept going and going and going and you couldn’t get off. That’s what it was like.


Leah Litman And if this commentary isn’t enough for you listeners, I would recommend Alexandra Petri’s piece in The Washington Post, which is titled Welcome to the Supreme Court’s Hypothetical Christmas Mall Village, in which she surveys this oral argument. And I want to do justice summarizing it, but definitely worth checking out.


Melissa Murray Here is a spoiler.


Kate Shaw She’s brilliant.


Melissa Murray Black Santa is involved. So listeners, obviously this was an enormous, enormous case, an oral argument. And this is on top of the fact that there was another enormous, enormous oral argument this week and more versus Harper. Obviously, we don’t want to overwhelm you and you spent so much time here. And again, Black Santa is the gift that keeps on giving. So don’t worry, we are going to come back to Moore versus Harper. Black Santa will put another coal lump in your stocking next week and we will add our recap of Moore versus Harper to our favorite things to leaven it up a little bit like make it a little lighter than it normally would be. And we’ll talk about Moore versus Harper in that episode, which is coming to you soon. So just hold tight. This one lump of coal will be enough to get you through until then. So don’t worry.


Leah Litman [AD]


Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, me, Melissa Murray, and Kate Shaw. It is produced and edited by Melody Rowell with audio engineering by Kyle Seglin and Music by Eddie Cooper, with production support from Michael Martinez, Sandy Girard and Ari Schwartz and digital support from Amelia Montooth. Stay naughty and nice or Black Santa will come get you.