First Year
I didn’t get far in law school. After three years of teaching at Watkins Memorial High School, I returned to my “life plan” and entered the University of Cincinnati. But as the first semester of law school ended, I made a life-changing discovery. I really wanted to teach and coach. That was a “calling” that I didn’t anticipate when I made my life plan back in my freshman year at Denison University.
But there I was, watching a high school cross country team training in Burnet Woods right by campus. I lost my entire train of thought about contract law. So when a job offer from my old Principal Pete Nix came right in the middle of final exams, I said yes. I finished the semester, and prepared to embark on thirty-three more years in public education. Other than disappointing my father and Judge Art Spiegel, I have no regrets.
I did learn a lot in that semester at UC. One thing was that a lot of my law school classmates judged a person on their apparel. I was going to law school by day, and running a Cincinnati City Council campaign by night. As the campaign manager, I was often in a suit and tie. I saw no reason, after studying from four in the morning, to go to a class of over two hundred dressed up. So I spent a lot of my day in old Watkins Track sweats.
Note Cards
In my law school days there was something called “the dreaded note cards”. The professor had a stack of note cards with our names on it. If your name came up, you were on the spot for interrogation. It wasn’t just for one question. You might spend the entire hour on your feet, as the professor tested your knowledge about the case, the precedents, and the dreaded “what ifs”. You never knew when your card would come up. But once you were “up”, you could relax a little. Unless the professor dropped the stack; then there was instant panic in the class.
So it was in contract class in mid-October. I’d been out late at a campaign rally, and up at four am with the books scattered across my apartment. But I was ready. My classmates looked at the “dude in sweats”, and expected a sub-par performance. But when the professor intoned “Mr. Dahlman, what’s your take on Fiege v Beam,” I stood up prepared for my turn in the barrel. I handled the case, the precedents, and a full twenty minutes of “what ifs”. And I taught the class a lesson about judging from appearances.
The law is based on precedent, and the operative word in law school is “what if”. What if we change this fact in a case – does that change the outcome? What case in the past would apply to this set of facts? Is there one set of facts that would change the entire outcome and legal precedent?
Cause of Action
Monday, the United States Supreme Court heard a Colorado case, 303 Creative v Elenis.
303 Creative is a web design company run by Lorie Smith. Colorado has a state law that requires businesses to not discriminate based on race, religion, or gender status. Ms. Smith wanted to post a message on her web site, saying that she will not design wedding webpages for same sex couples. She believes marriage is only between a man and a woman.
Before we go forward, there is a huge break in precedent already. The Supreme Court almost never takes a case without a “cause of action”. That is, there has to be a real case, with real clients and real damages, to get in front of the Supreme Court, at least, that’s the precedent. In fact, many cases fail to get to the Supreme Court, because the plaintiff cannot show damages. A precedent: in 2020, Texas sued Georgia, Arizona, and Pennsylvania saying that those states didn’t follow their own election laws. The Court denied Texas’s claim because they couldn’t show how the other states actions damaged Texas. The Lone Star State didn’t have a cause of action to bring suit.
No Message, No Case
Lorie Smith was never asked to build a website for a gay couple. Her whole case was based on the fact that when she asked the state of Colorado whether she could put the message on her website the state said no, that would be against the law. She never put the message up. Colorado never launched a legal proceeding against her. She sued based on the fact that she could be taken to Court by Colorado, not that she actually was.
So precedent would have the Court deny a hearing (deny certiorari) based on standing. Nothing actually happened, and no one was damaged. But the Court did not. They took the case.
Lorie Smith could have made a First Amendment case based on “religion”, saying that to require her to make a gay couple website would violate her religious beliefs. That would match the precedent established in the Masterpiece Cakeshop case in 2018. In that case, the Court ruled that a baker could not be required to make a wedding cake for a gay marriage if it violated his own religious beliefs. That ruling was narrowed to ONLY apply to that baker, not other bakers or wedding photographers or planners, or caterers or even website builders. But the precedent could be expanded by future rulings.
Free Speech
But Lorie Smith’s attorneys did not make religious arguments. Instead, they based their case on the “Free Speech” clause of the First Amendment,. The claimed that Ms. Smith has the “free speech” right to post her message for gay couples.
No one doubts the right of someone to be against gay marriages. The question is can someone engaged in public commerce deny their business to folks that they are against.
There is a logic in Smith’s argument. It’s her “art”, her effort that creates the website, just like it was the baker’s “art” that created the cake. It’s not like she’s renting them tables, or providing the deviled eggs. If she is forced to take on a gay couple’s website, then she is required to use her creative talents to make them “look good”, something that she doesn’t believe.
And let’s get past the fact that she was never asked, and in fact, there is no damage done in this case. The Supreme Court has accepted a “hypothetical” case. But it also opened the door to a whole series of other hypotheticals, of “what ifs”.
What if she didn’t agree with biracial couples or Jewish couples, or Roman Catholic couples. Should she have the “right” to not serve them? What if, as came up in the Court, she was a photographer at the Mall, taking pictures of kids talking to Santa Claus. What if she didn’t think black children should speak to a white Santa Claus, or vice versa. Should she have the right to deny them? And what if she opened a restaurant, and her “art” was the food. Does she have the right to refuse service to gays, or to Jews, or to Blacks?
Jim Crow Redux
Listening to the Justices question the opposing counsel, much like the “notecard” professor back in Law School, it was clear that the conservative justices are very willing to rule in Smith’s favor, expanding the right to “not serve” based on “free speech” as well as “religious freedom”. And what door does that open?
In 1896 the Supreme Court ruled for Jim Crow Laws that allowed separation based on race. The legal “dictum” of that case was as long as the services offered were “equal”, they could be “separated” by race. The Plessy v Ferguson ruling stood until 1954, when Brown v Board of Education finally overruled it, beginning the end of the Jim Crow era.
But Jim Crow was based on the assertion by bus companies, restaurants, hotels, stores and other public enterprises that they had “the free speech right” to choose which race they wanted to serve. It doesn’t take a lot of “what ifs” to go from Lorie Smith’s website, to the local restaurant, to the Holiday Hotel down the street – or from gay couples to racial segregation.
