Brad analyzes the recent SCOTUS decision ruling that a website designer has the right to refuse to create websites for gay couples. It's the latest attack on equality from the Alliance Defending Freedom. Brad discusses two major components of the case:
The lawful expectations of businesses that are open to the public
The ways that this opens the door for discrimination against numerous vulnerable groups on the basis of the freedom of speech.
Subscribe for $5.99 a month to get bonus episodes, ad-free listening, access to the entire 500-episode archive, Discord access, and more: https://axismundi.supercast.com/
Piece by Andrew Seidel: https://religiondispatches.org/dont-be-fooled-todays-supreme-court-decision-gutting-civil-rights-laws-isnt-about-an-individual-who-opposes-same-sex-marriage-as-a-tenet-of-faith/
Piece by Elizabeth Sepper: https://www.latimes.com/opinion/story/2023-06-30/supreme-court-303-creative-gay-rights-first-amendment-lorie-smith-neil-gorsuch-sonia-sotomayor
Piece by David French: https://www.nytimes.com/2023/06/30/opinion/christians-and-drag-queens.html
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Welcome to Straight White American Jesus.
My name is Brad Onishi, faculty at the University of San Francisco.
It's been some time since I've done a solo episode, but I wanted to do that today, Monday, July 3rd, the day before July 4th, to talk about something that we could not talk about Friday because we didn't have the rulings and the information and all the stuff in front of us.
And so on Friday, a couple of Supreme Court cases dropped that really touch on many of the themes of the show we talk about.
And one of those was a case involving 303 Creative LLC versus Alanis.
And basically at stake here is a website designer named Lori Smith who did not want to make websites for gay couples.
Now that's the stated premise behind the lawsuit and it obviously went all the way to the Supreme Court.
And the Supreme Court decided 6-3 that Colorado could not force website designer Lori Smith to serve LGBTQ plus couples seeking wedding websites.
And I'm looking right now at a piece by Kate Sosin at 19th News or the 19th, which is A non-profit news org that specializes in gender and sexuality issues.
The basic premise is very similar to the Masterpiece Cake Shop from about five years ago where somebody is saying, hey, I'm a business owner and I do not want to serve folks who are asking me to do things related to gay weddings because I believe that gay marriage is a sin and it goes against my religious beliefs.
Now there's, as many of you may know by now, some somewhat conspicuous circumstances related to the case.
One of them being the fact that it seems as if the person who's mentioned as the individual who supposedly reached out to Smith and asked for a website related to His gay wedding or his upcoming gay wedding either does not exist or is not somebody who ever asked for that service is not gay and had no idea that he was part of this whole Supreme Court case.
So I'll get to that in a minute.
Before I do, let me just recount some of the facts related.
To this, and we'll touch on this whole missing persons issue as we go.
But there's a piece by Mother, by Madison Polly at Mother Jones.
And so let me read a little bit of that.
If you believe the story told by court documents filed by ADF, and ADF is the Alliance for Defending Freedom.
Some of you have know, probably know already that the case was tried by Erin Holley, the wife of Josh Holley, who works at the Alliance for Defending Freedom.
This is a huge, massive, and influential right-wing group that brings cases like this all the time.
They are involved in things related to, like, obviously to abortion.
I mean, if you remember the abortion pill ruling about two months ago, they were involved there.
Aaron Hawley's involved in a lot of it.
So, there you go.
If you believe the story told by court documents filed by ADF the very day after opening her case, Smith received an inquiry through her website from a potential client named Stewart.
My fiancé is Mike, Stewart ostensibly wrote.
We are getting married early next year and would love something done for our invites, place names.
We might also stretch to a website.
So apparently Stewart was asking for creative work related to invites, place names, and maybe a website.
Polly goes on.
It apparently took six years for anyone to verify the identity of Stewart, whose phone number and website appear unredacted in court documents.
When Melissa Guyra-Grant of the New Republic texted him last week, Stewart, who is real and lives in California, was, quote, flabbergasted, as he later told the Washington Post.
Stewart, as it turns out, is a graphic designer himself.
He's straight and has been married for 15 years to a woman, he informed Grant.
And he never submitted a request for design services to Smith, he told her.
So Grant wrote, this is Grant at the New Republic, I don't live inside Stewart's computer.
There's a chance that he's not telling me the whole story, that this is some elaborate prank he pulled years ago and doesn't want to confess to now.
But if he's telling the truth, that his request was done completely without his knowledge, I don't have any answers for him.
None of this makes sense to me.
Now, you might be wondering why.
Why would they do this?
I mean, there's the question of why, there's the question of how.
How did this get to the Supreme Court if the person who supposedly asked for a website related to a gay wedding never did that?
That's one question.
I'm not going to answer the how right now, and I don't know enough to tell you how this ever got there.
In terms of reaching the Supreme Court if this person was not actually doing this.
But I do want to talk about why.
And I think a really good answer comes from Andrew Seidel, friend of the show, my friend and colleague, somebody who I always turn to in times like this for insight.
And he wrote this at Religious Dispatches this week.
ADF, the Alliance for Defending Freedom, designed the case this way so that no party who'd been discriminated against would be able to put a face on 303 Creative's bigotry.
By erasing the true targets of the bigotry, ADF manipulated the narrative.
There was no couple to interview, no actual victims, only ADF's client and her version of the non-events.
What Andrew's saying there is that ADF Manufactured this case such that there was no gay couple who could be on TV.
A gay couple that looked sympathetic and sounded very civil, very normal, very ordinary, very something.
People who might elicit care, empathy, Other feelings from the general public.
They designed it in a way that the victim was faceless.
The victim was not someone you could see or hear or touch and thus care about.
And that was on purpose.
If you think about all the things we talk about in this show so often, it's about how Christian nationalists and many on the American right invent bogeymen and others.
Others who are often supposedly evil and demonic.
Others who are supposedly coming to take down the country and hurt your children.
And they're always faceless and nameless, right?
That's what happened here.
So if you're wondering why, I think Andrew's explanation is a really good explanation.
Now, there's a piece at the LA Times this week by Elizabeth Sepper, who is a professor of law at the University of Texas at Austin.
And I really think Professor Sepper gets at the heart of a lot of the issues in the case that stand out to me.
I've read a lot of opinion pieces on this.
If you know me, you know, I have about 78 tabs open and I've been sort of pouring over info and information and things.
And I think this piece really provides some things to reflect on.
Here's an opening line.
It's important to understand what public accommodation law does and does not do.
It doesn't target speech.
It does not require any person to open up sales to the public at large.
It doesn't demand that a business sell any particular product or perform any specific service.
But the law has meant that a business open to the public must offer its services equally to people without regard to race, religion, sex, or, in many states, including Colorado, which is where this case is located, sexual orientation.
So let's just stop for a minute and really break down, I think, an important point.
There's a law in place that says, look, if you are going to do business with the public, You have to do business with the entire public.
You cannot discriminate against a certain group of the public.
So you cannot say, we will not serve black people.
We will not serve mixed race people.
We will not serve women.
Now, obviously, you might be thinking, well, what if someone's in my restaurant and they're being violent or rude?
Sure.
Or what if someone walks in my restaurant naked?
Do I have to like serve them?
No, of course not.
What this law is about is about Making sure that people are not being turned away from businesses based on their identity.
Now in Colorado and in many other states, their identity is recognized, part of their identity is recognized as their sexual orientation.
So we can sit here and obviously think of the very easy examples.
You can't turn somebody away from a restaurant because they're black.
And we've hopefully have all seen the images of the counters where people, uh, staged sit-ins in the, in the civil rights movement and were jeered on and spit at because they wanted to eat in the same places as their white counterparts.
Now that's all pretty basic, I think.
I think what Sepper says though at the beginning of the paragraph is actually really the heart of this case.
It's important to understand what public accommodation laws do and do not do.
So these laws do not target speech.
This is not curtailing free speech.
That's one.
Now, now hear me out.
Okay.
I know what some of you are thinking, but I'm going to, I'm going to get there.
Does not require any person to open up sales to the public at large.
It doesn't demand that a business sell any particular product or perform any specific service.
This is a point Dan Miller makes often on the show.
He actually, I think, has made it recently in the, it's in the Code Series, the Religious Freedom episode that came out last week.
And Sepper makes it here too.
And that's this.
Your free speech as an individual, a citizen, is one thing.
Hey, I'm Brad.
I'm an individual.
I'm a citizen of the United States.
And I think this, this, this, and this.
Okay.
And I might be like I used to be an evangelical 25 years ago or so, who thinks that gay people getting married is a sin.
Alright.
No one's going to put me in jail.
No one's going to say that I can't say that.
No one's going to say that me, the individual, is somehow going to be arrested or censored or fined or nothing.
However, when I open up a business and I'm offering products, Then the law says, I'm going to need to offer those products or those services to everyone and not turn people away based on their identity, based on something about the group that they belong to or the identity that they hold.
And in this case, it's people who are gay.
All right.
So as Sepper says in the piece, Smith was free to stay out of the wedding market.
She could have operated as a freelance artist or designer or a creator whose business isn't considered open to the public.
If she had just been a freelance artist, she could have just taken on projects when she wanted them.
So you can imagine a scenario where Laurie Smith is telling a friend, Hey, I think I'm going to open up a business where I do things like create websites.
for people or I'm going to be a graphic designer.
Okay, cool.
Her friend says now, if you open up a business and under an LLC, you know, you're going to need to offer those services to everyone, meaning that you need to offer those services without turning people away based on their identity.
Now, there may be times that you have too much work or can't do it or, you know, don't want to or whatever.
But just to say that the reason you're not going to do it is because of their identity won't work.
So you might want to consider that, Laurie.
You might want to think about being an LLC, or you might want to think about the fact that it might be hard for you if somebody asks for this and you turn them away on these basis.
But that's not what she did.
Smith opened an LLC.
Now, this is another point that Dan Miller makes on this show quite often.
It's also a point that Andrew Seidel made in his piece on the case at Religion Dispatches.
This is about an LLC.
It's not about an individual.
LLC means limited liability company.
When you open up an LLC, you're opening up a company that separates you, the individual from the business you're doing in order to separate you from liability, if there are damages.
So if somebody has a limited liability company and they're sued, right, they don't lose their house because you can't sue the person you're suing the company.
However, when you open an LLC, that business is open to the public.
Here's what Andrew says about it at Religion Dispatches.
The corporation is one of the most significant inventions of the last millennium.
It exists to legally separate individual people from the businesses they operate.
The corporation shields people and their assets from business liabilities, creditors, and obligations.
Forming a corporate entity, such as an LLC, comes with immense benefits, but also some strings.
Especially once it opens itself up as a place of public accommodation.
Businesses must follow health regulations and environmental rules, and obey regulations that keep consumers safe, including civil rights laws.
Until now, the court just upended that system.
Now, the issue, I think, at the very, very center of this, and why this made it to the Supreme Court, and why it was ruled this way, is because this is about expression.
And so one of the things that Sepper points out and others is that this is actually not a case about the freedom of religion.
You might have read a headline and thought, oh, another Christian claims that they have the freedom of religion to discriminate against queer people.
That's actually not what happened here.
The case is about freedom of speech.
It's about the freedom of expressing yourself as an American.
This is how Sepper puts it.
Under its reasoning, businesses that offer customized or expressive goods can discriminate, and while Smith asserted religion as her motivation, this is a speech case, so it won't matter whether business owners are motivated to discriminate by sincere religious values, secular bigotry, or no reason at all.
So, it's an expression case.
It's saying that if I create things… that are expressive goods, then I can discriminate because I'm creating things that express my beliefs and therefore I'm allowed to say, well, I don't believe in the thing that you want me to express.
And so I'm going to turn you away.
Now, this is exactly how Judge Reasons in this case, he talks about how the law to accommodate people in public, the law for businesses to accommodate people to regardless of the race, religion, sex, or sexual orientation, somehow can inhibit free or sexual orientation, somehow can inhibit free speech.
Why?
Why?
The argument is that If you tell Lori Smith that she cannot turn away people who want a website for gay marriage, that Lori Smith, quote unquote, has to create the website for the gay couple who wants her to do so, then you are forcing her to express things that she does not believe or that go against her beliefs, in this case, maybe her religious beliefs.
So that's the argument.
The argument is that it would be wrong for the government to tell Lori Smith that she has to create a website for gay people when she thinks that her religion prohibits two men or two women and so on from getting married.
This is exactly the reasoning that David French uses in his op-ed on this issue, on this case.
I know some of you out there may be fans of David French, and some of you may not be.
However, I just, I have to be honest, I don't think that his reasoning in this instance is very good.
He talks about having been a lawyer, and then he says this.
This case was not, as it has been widely described, about whether a website designer could refuse gay customers.
That would be both illegal and immoral, and I would not participate in such a case.
Indeed, the party stipulated that the web designer, Lori Smith, was willing to work with all people regardless of classifications, including sexual orientation.
She was simply not willing to design websites that contained messages that violated her religious beliefs.
Okay, so this is the place where we run into the two competing narratives about our public square, okay?
Here's one.
Regardless of who you are, black, white, Asian, Latinx, Native American, regardless of your race, regardless of your sex, man, woman, non-binary, so on, regardless of your religion, Regardless of your sexual orientation, you have a right to be served in public by all things available to the public.
That's one narrative.
Here's another narrative.
Another narrative says that if my religious beliefs somehow mean that I cannot engage in business with a certain group of people, then I am protected by the Constitution and the protection of the freedom of religion.
You see, one of them is about identity.
It's about, I'm a person with a certain identity.
And you are not allowed to refuse me service because of my identity.
The other one is about religious belief and expression.
And I want to be clear, this case is actually about expression.
And it's basically saying that if you ask me to create things that go against my expression, in this case, my religious beliefs and what I think should be expressed related to marriage, then I have the right to say no to you.
So this is how David French goes on to defend the ruling in the case.
The 303 creative case was instead about compelled speech.
When could the government require a commercial provider of expressive services to say things she found objectionable?
So French is asking, and I think a lot of people are following the same path here.
Can the government make you do business with someone who wants you to create something objectionable?
Let's just hold on to that question.
If you're driving right now and doing the dishes, if you're walking the dog, whatever it is, just think about that right now.
Can the government Make you do business with somebody who wants you to create something, express something, write something, draw something, design something that you think is objectionable.
Okay.
Here's how French continues.
Could the government compel a portrait artist to paint a heroic picture of a white supremacist?
Could the government compel a speechwriter to pen an anti-gay screed on behalf of a right-wing politician?
So what French is asking here, I think, is, okay, if I'm a designer, if I'm a speech writer, if I'm an artist, and somebody walks up to me and says, hey, you're open for business.
I'm going to come in and I really would love it if you can paint me a heroic picture of a white supremacist.
I'll pay you a hundred dollars or a thousand dollars or a million dollars.
And I say, I'm not going to do that.
Uh, that's not really something that I think I can do, uh, for a lot of reasons.
So I appreciate you asking, but it's just not something I can, I can do right now.
Okay.
What I think I'm saying is that, uh, I'm not going to do that because, because I find that objectionable.
I'm not going to do it.
And you're saying, wait a minute, Brad, I thought the whole day today, I thought your whole thesis, your whole argument up to this point was that that's not okay.
But notice the difference.
What I'm saying is, is, hey, you want me to draw a heroic picture of, of Hitler or of a KKK grand wizard or something like that?
And I'm saying no.
And I'm saying no, because the thing that you want me to create, I find objectionable.
I'm not saying no, because I find a protected class of people and their rights objectionable.
And that's the subtle difference.
Andrew Seidel talks about this in his piece at Religion Dispatches, and he quotes a line from his new book, American Crusade.
Here's what he says.
It's impossible to draw a logical or consistent line between discrimination against one protected class, race, and another, sexual orientation, because once religiously motivated discrimination is permitted, the line has already been drawn in the wrong place.
So what they're saying is like, hey, I get it.
There are certain protected classes out there.
So you're not allowed to say, yeah, I'm not going to create this thing for you because you're a black person.
Or yes, I'm not going to write the speech for you because you are a black person.
Not okay.
Okay.
Sure.
Why is it not okay?
Because race is a protected class.
Now, if somebody said, well, look, Um, I, uh, I have a business and, um, I just find the existence of black people to be objectionable.
So I will not do business with them.
And that is my, that is my right.
What we would say, we would say is that's not okay.
If you want to do business in this country.
You cannot just say that your first amendment right, the freedom of speech extends to this idea that you find the black people objectionable.
Think about if I just said, and believe me, this has been said in history many times in tragic and disgusting and just truly unimaginable, unimaginably hurtful ways.
I just think the existence of Jewish people is objectionable.
We would say, you can hold that belief, but you cannot be in business and operate that way.
As a citizen, sure.
But as a business owner, no.
So if you're objecting to someone saying, I'm not going to do business with you because I think the existence of gay people, and including gay people who do things like all other people, all other protected groups, all other folks in society, want to do things like get married, then we might say, look, you can hold that belief.
But you can't do business this way.
You're going to have to close your business.
As I said earlier, you could be a freelancer who just accepts projects as they wish.
Not open to the public.
Somebody who only takes on certain projects.
Like you can totally see how this works, but that's not, that's, that's not what French sees in this case.
And it's not what many people in this case see.
French's example that could the government compel a portrait artist to paint a heroic picture of a white supremacist.
White supremacists are not a protected class in the country.
White supremacists, being a white supremacist, is not part of one's identity.
So I'm not saying to somebody who has a protected identity that I won't do business with you.
I'm saying, I don't think I'm going to create that thing and express that thing because I don't want to do that.
Now, let me just come back to a point I made early on in this.
Once you are doing business as a business open to the public, the expression is the expression of the business.
It's the expression of the business.
It is not the expression of an individual artist.
So if we think of the expression of the individual artist, the artwork of Van Gogh or Monet, the artwork of Amanda Gorman as a poet, we do not think of that in the same way as a business that creates a sign, a business that creates a slogan, and so on and so on.
So there's kind of two issues.
One is you're refusing a protected class and not accommodating them in your business, which is supposed to be open to the public.
You're saying to part of the public, I won't do this for you.
And you're saying, I won't do this because me, the individual with the freedom of expression doesn't want to, but you're doing so hiding behind all the privileges of a limit liability company.
The limit liability company gives you all the privileges of not being held accountable when it comes to bankruptcy or something else.
And yet you're also saying, I want the privileges of that, but I don't want the restrictions that come with being a business.
And I mentioned those earlier that Andrew Seidel does a great job in his piece of mentioning them as well.
You open a business, you have to follow certain laws.
Certain things that keep people safe.
Certain things that make a safe workplace.
A place where people won't get sick if they come into work at your factory or your diner or somewhere else.
A place where customers can be assured that there's no toxic chemicals or something else.
If you open a business, there are things you have to do that you're compelled to do.
And you can choose to go into certain businesses based on whether or not you feel like you can carry out what is expected of you.
I'll give you a really dumb example from my days as an evangelical teenager, somebody who was very zealous about being an evangelical.
I was looking for a job as a high schooler and I was trying to find something that would fit in with my Homework schedule and my class schedule and something else.
And I had a friend who said, hey, I'm going to quit my job and you could probably have it.
I'll just talk to the guy.
You work at the gas station behind the counter and you basically just sell things, you know, people want gum and lottery tickets and all this other stuff.
And at first I thought it sounds great.
And my buddy was like, yeah, it's a great job because a lot of times nobody's in there and you can just do your homework or read or something.
And it's pretty good.
Like you can go to work and get paid, but you know, you can actually probably do a little bit of homework while you're at work.
And it's like, wow, that's a good deal.
And then here's me, Mr. Like super zealous evangelical.
And I thought about it.
And part of that job was selling cigarettes to people that wanted to buy cigarettes.
And in my evangelical mind, selling cigarettes was wrong.
I just couldn't go along with that.
That program.
No, you can email me if you want to know why I thought it was wrong, whatever.
I don't really want to get into it right now.
But I told my friend, hey, thanks for thinking of me, but I thought about it and I don't think I can do that because my religious beliefs mean that I don't think I want to sell cigarettes.
And so I can't do that job.
You can totally see that the government didn't compel me to sell cigarettes.
The government didn't tell me that I had to sell cigarettes.
But you can also see that if I had stepped into that job and then told my boss, hey, if somebody comes and asks for cigarettes, I'm not going to give them to them because I don't believe in that.
And the boss said, well, I don't think you can do the job.
And I said, well, you're infringing on my religious belief.
Sorry, I'm going to sue you.
You can see the ridiculousness of that.
Now, I realize there's a little bit of nuance in this case, and that's what French would say.
He would say, well, this is about expression, not just transactions of goods.
But the expression here is the good.
And if I'm operating as a business who's open to the public and the laws require that I serve people regardless of their identity, regardless of their sex, race, religion, or sexual orientation, then it may be the fact that I can't operate that kind of business.
I can't.
This is not about attacking Christianity.
It's not about curtailing your religious belief.
It's about the fact that no matter who you are in the United States, you're supposed to be able to enjoy all the privileges of the public square.
We have had in this country many times where there are signs on stores that say, no black people, no Jews, no Chinese, no Japanese, so on and so on and so on.
I'm not going to go through all the examples of that.
I hope that if you're listening, you're aware of those.
And so even though there's the nuance here of this being expressive speech, it's about expressive speech in the context of a business open to the public.
And that's why this ruling seems to be so problematic.
So people are now looking forward to think, well, what does this mean?
And I think Andrew Seidel does a good job of kind of pointing us to what this could mean for the future.
ADF and the other Christian nationalist organizations are going to file case after case working to expand this decision to everyone from photographers to, quote, sandwich artists.
Even after the gay wedding case, a wedding cake case, which didn't give bigots the weapon they got today, they were still willing to test the limits of discrimination.
So they're going to test this.
What does expressive speech mean?
What kinds of things are considered expressive when I'm doing business?
Sepper, the law professor at UT Austin, writes this in the LA Times.
Law firms and advertising agencies primarily engage in speech, so they may fit the definition.
And many businesses customize their goods.
Dance studios, tutoring services, caterers, and hair salons.
The boundaries are hopelessly muddy.
So I'll just close today with one example that we might see.
Let's just think about a hair salon.
Given all of the things that we're hearing about drag shows and banning drag and the ways that Drag Queen Story Hour is being singled out and so on.
I mean, we talked a few weeks ago about a musician, or excuse me, an author in Montana Who is not allowed to give a reading at a public library because of a Drag Queen Story Hour provision.
So you can see how these things work.
So what if somebody shows up at a hair salon?
And they say, I would really like you to give me this hairdo and I'm a man and I'd like you to give the style and cut my hair this way.
And the hair designer, the person at the salon says, I'm not going to do that because if I did that, I would be creating for you a man, a hairstyle that I think expresses a homosexual body image.
If I do that, I might be expressing myself as an artist.
By creating a hairstyle that is gay, that is trans.
You're a man, and I'm not able to give you a woman's haircut.
You're a man, and if I give you that haircut, everyone's going to know you're gay or think you're gay, and I don't want them to trace that back to me, somebody who is expressing their artistic creativity by cutting hair.
So I'm just going to put on my shop a little sign that says we don't serve gay customers.
We don't do gay haircuts.
We don't do gay styling or lesbian styling or queer styling.
We might say we only do straight haircuts.
Now you can start to see, right, the kind of ways that this will be used and tested and the means that people will just start to advertise their bigotry.
And those things trickle down.
When you're a 15-year-old, when you're a 12-year-old, when you're a 7-year-old, and you're walking by stores that say, straight only, it seeps into the public square.
The kinds of normalcy that sink in are just pervasive.
So you can start to understand why this is so, so dangerous and so, so sad in terms of a ruling.
There's a lot more to say.
There's a lot more I could go on about.
I'll leave it here for now.
We may touch on this in the weekly roundup on Friday, but I wanted to share some of these thoughts.
Appreciate Andrew Seidel and Professor Sepper and others who helped me understand this.
And I'll put some of those articles in the show notes.
For now, I'll say as, as always, if you can think about supporting us, this is an indie show.
We do it three times a week.
We have no outside funding.
We don't have a grant or a big university behind us.
It's just us doing our best.
So in the show notes, you'll find PayPal, Venmo, Patreon.
If you can't think about contributing, you can find us on social media at Straight White JC.
You can find me at Bradley Onishi.
My book is now out in audio form.
So if you're an audio book person, look for Preparing for War, The Extremist History of White Christian Nationalism and What Comes Next on audiobook.