LGBTQ+ rights

The Supreme Court heard oral arguments yesterday in 303 Creative LLC v. Elenis, a case that pits Colorado’s anti-discrimination law against free speech.

303 Creative is a website design business owned by Lorie Smith. According to her brief, Smith wanted to tailor her business to wedding announcement websites, but with the explicit exclusion of LGBTQ+ couples.

Smith is also Christian, and her religious beliefs—along with those of other Abrahamic faiths— teach that marriage is only between one man and one woman. For Smith, the marital relationship mirrors Christ’s relationship to the Church and fulfills the complementary nature of God’s first institution. Smith believes that her creative abilities are a gift that must be used in ways that glorify and honor God… Smith will decline any request—no matter who makes it—to create content that contradicts the truths of the Bible, demeans or disparages someone, promotes atheism or gambling, endorses the taking of unborn life, incites violence, or promotes a concept of marriage that is not solely the union of one man and one woman. Accordingly, Smith’s standard “Contract for Services” memorializes her right only to create messages or promote events consistent with her beliefs.

Before Smith was even asked by a gay couple to design a wedding website, she sued the state of Colorado to challenge its anti-discrimination act (CADA). The law reads in part that it is illegal for companies open to the public to deny services to customers based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” If Smith designs a wedding website, she must allow same-sex couples to purchase that product. She cannot deny the service to anyone based on their identity.

Both the District and Appellate courts ruled against Smith. Represented by Alliance Defending Freedom—defined by the Southern Poverty Law Center as an anti-LGBTQ hate group—Smith took the case to the U.S. Supreme Court.

Multiple issues came to the forefront during the high court’s oral arguments. First, is designing a website on behalf of customers classified as the designer’s speech or the customer’s speech?

Justice Sotomayor pointed out that Smith’s website mockups show “the story of the couple,” not an endorsement of the marriage: “I’m looking at every page, and it’s the story of the couple… I keep looking at all of the mockups and all of them relate to what [the couple] are saying or doing… I don’t understand. How is this your story? It’s their story.” (starts at 12:50 mark)

Kristen Waggoner, the ADL lawyer, responded that “book authors, newspaper editors, those who write all kinds of publications” write about “someone else’s story, but it’s still their speech.”

Another issue that came up numerous times during oral arguments was how discrimination against sexual orientation is different or similar to discrimination against other protected classes, like race or disability.

Again, Justice Sotomayor led this part of the questioning, asking why Smith should be allowed to discriminate against same-sex couples but not interracial couples:

Sotomayor: Please tell me why it’s not protected speech, the identical message that Justice Barrett put forth, but by a disabled couple. You say ‘I don’t want disabled people to get married. I think propagating a disability is against my personal belief.’ It doesn’t have to be religious because we’re not dealing with the religious part of this. ‘I don’t want to speak that message…I’m not going to serve those people because I don’t believe that they should be married.’ What’s the difference between that and ‘I don’t believe black people and white people should get married?’

Kristen Waggoner (ADL): What matters is what the objection is that the speaker is being asked to create and whether the—

Sotomayor: But that’s my objection: I don’t believe they should be telling their story.

Kristen Waggoner (ADL): 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.

Sotomayor: So there is no line on race? There is no line on disability, ethnicity? None of the protected categories in a public accommodation law?

Kristen Waggoner (ADL): There is a line, there’s a very clear line and it’s worked very well.

Sotomayor: Tell me what the clear line is. You’re saying it is compelled speech, correct? Not compelled service?

Kristen Waggoner (ADL): The line is that no one on any side of any debate has to be compelled to express a message that violates their core convictions.

All in all, it appears likely that the conservative majority of the Supreme Court will rule in favor of Smith.

Alito scolded Colorado Solicitor General Eric Olson: “What I get is that you’re making a tiny sliver of an argument. The website can put anything on its website, even something that will blatantly or subtly tell a same-sex couple, look, this is not a service that you want.” After Olson said yes, Alito’s questions only got weirder. He made quips about JDate and Ashley Madison, then unspooled a strange hypothetical that culminated with a joke about a Black child in a KKK costume seeking a picture with Black Santa at the mall. An angry Gorsuch later jumped in to tell Olson that the state’s efforts to mandate compliance with nondiscrimination law amounted to “reeducation” camp.

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Bribery

The Supreme Court heard oral arguments last week in Percoco v. United States, a case concerning informal political influence and anti-bribery laws.

The case revolves around Joseph Percoco, a senior aide to then-Governor of New York Andrew Cuomo from 2011 to 2016. In mid-April 2014, Percoco temporarily left the governor’s office to work for Cuomo’s re-election campaign, with the understanding that he would return to the office after the election. During his time working for the campaign, Percoco helped a real estate developer avoid signing a costly labor agreement in exchange for $35,000. He was convicted of honest services wire fraud for the deal, in addition to two other charges for earlier bribery schemes.

• Honest-services fraud is a federal crime defined as a “scheme or artifice to deprive another of the intangible right of honest services.” To violate the law, the victim (i.e., the general public) must have been owed some obligation by the defendant (i.e., the government official) to govern impartially.

Percoco now challenges the honest services fraud conviction, arguing that because he was not formally working for the government during the time, he was acting as a legal lobbyist and not subject to honest services fraud statutes.

The majority of the Justices seemed to agree with Percoco’s lawyers that the law could ensnare a “super effective lobbyist,” in Justice Alito’s words.

[Assistant to the Solicitor General Nicole] Reaves answered that such a person would not be subject to the statute, because they would not be functioning as an actual government employee.

“Why not?” asked a skeptical Gorsuch. “This town is full of such persons,” he continued, “‘Kitchen cabinets’ are usually taken quite seriously.”

Percoco’s lawyers argued that, like lobbyists and donors, their client had “influence drawn from years of public service, from a close relationship to the Cuomo family and from his senior campaign role. But none of that creates a fiduciary duty to the public.”

However, as the Second Circuit Court of Appeals found in ruling against Percoco, he was far from disconnected from the Governor’s office while he was advocating on behalf of the real estate developer (COR Development):

Percoco was a few days from formally returning to his position in the Governor’s Office and had already signed and submitted his reinstatement forms. In fact, Percoco’s swipe-card and telephone records revealed that he was at his desk in the Executive Chamber when he directed Kennedy to resolve the Labor Peace Agreement in COR Development’s favor. Kennedy testified that he interpreted Percoco’s call as “pressure” coming from one of his “principals,” who was a “senior staff member[],” and that he relayed this sentiment to another senior executive at the agency when encouraging that official to waive the required Labor Peace Agreement.

A Supreme Court ruling in Percoco’s favor would allow government officials to temporarily take a break from their official duties in order to accept payments that would otherwise be considered bribery. The revolving door of government officials to lobbyists and back again would only increase in speed and funding.