I didn\u2019t get far in law school.\u00a0\u00a0After three years of teaching at Watkins Memorial High School, I returned to my \u201clife plan\u201d and entered the University of Cincinnati.\u00a0\u00a0But as the first semester of law school ended, I made a life-changing discovery.\u00a0\u00a0\u00a0I really wanted to teach and coach.\u00a0\u00a0That was a \u201ccalling\u201d that I didn\u2019t anticipate when I made my life plan back in my freshman year at Denison University.\u00a0<\/p>\n\n\n\n
\u00a0But 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.\u00a0\u00a0So when a job offer from my old Principal Pete Nix came right in the middle of final exams, I said yes.\u00a0\u00a0I finished the semester, and prepared to embark on thirty-three more years in public education.\u00a0\u00a0Other than disappointing my father and Judge Art Spiegel, I have no regrets.<\/p>\n\n\n\n
I did learn a lot in that semester at UC.\u00a0\u00a0One thing was that a lot of my law school classmates judged a person on their apparel.\u00a0\u00a0I was going to law school by day, and running a Cincinnati City Council campaign by night.\u00a0\u00a0As the campaign manager, I was often in a suit and tie.\u00a0\u00a0I 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.\u00a0<\/p>\n\n\n\n
In my law school days there was something called\u00a0\u00a0\u201cthe dreaded note cards\u201d.\u00a0\u00a0The professor had a stack of note cards with our names on it.\u00a0\u00a0If your name came up, you were on the spot for interrogation. It wasn\u2019t just for one question. You might spend\u00a0\u00a0the entire hour on your feet, as the professor tested your knowledge about the case, the precedents, and the dreaded \u201cwhat ifs\u201d.\u00a0\u00a0You 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.\u00a0\u00a0<\/p>\n\n\n\n
So it was in contract class in mid-October.\u00a0\u00a0I\u2019d been out late at a campaign rally, and up at four am with the books scattered across my apartment. But I was ready.\u00a0\u00a0My classmates looked at the \u201cdude in sweats\u201d, and expected a sub-par performance.\u00a0\u00a0But when the professor intoned \u201cMr. Dahlman, what\u2019s your take on\u00a0Fiege v Beam,\u201d\u00a0<\/em>I stood up prepared for my turn in the barrel.\u00a0\u00a0I handled the case, the precedents, and a full twenty minutes of \u201cwhat ifs\u201d.\u00a0\u00a0And I taught the class a lesson about judging from appearances.<\/p>\n\n\n\n The law is based on precedent, and the operative word in law school is \u201cwhat if\u201d.\u00a0\u00a0What if we change this fact in a case \u2013 does that change the outcome?\u00a0\u00a0What case in the past would apply to this set of facts?\u00a0\u00a0Is there one set of facts that would change the entire outcome and legal precedent?<\/p>\n\n\n\n Monday, the United States Supreme Court heard a Colorado case, 303 Creative v Elenis. <\/em><\/p>\n\n\n\n 303 Creative is a web design company run by Lorie Smith.\u00a0\u00a0Colorado has a state law that requires businesses to not discriminate based on race, religion, or gender status.\u00a0\u00a0Ms. 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.<\/p>\n\n\n\n Before we go forward, there is a huge break in precedent already.\u00a0\u00a0The Supreme Court almost never takes a case without a \u201ccause of action\u201d.\u00a0\u00a0That 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\u2019s the precedent.\u00a0\u00a0In fact, many cases fail to get to the Supreme Court, because the plaintiff cannot show damages.\u00a0\u00a0A precedent:\u00a0\u00a0in 2020, Texas sued Georgia, Arizona, and Pennsylvania saying that those states didn\u2019t follow their own election laws. The Court denied Texas\u2019s claim because they couldn\u2019t show how the other states actions damaged Texas.\u00a0\u00a0The Lone Star State didn\u2019t have a cause of action to bring suit.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n Lorie Smith could have made a First Amendment case based on \u201creligion\u201d, saying that to require her to make a gay couple website would violate her religious beliefs.\u00a0\u00a0That would match the precedent established in the\u00a0Masterpiece Cakeshop\u00a0<\/em>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.\u00a0\u00a0That ruling was narrowed to ONLY apply to that baker, not other bakers or wedding photographers or planners, or caterers or even website builders.\u00a0\u00a0But the precedent could be expanded by future rulings.\u00a0<\/p>\n\n\n\n But Lorie Smith\u2019s attorneys did not make religious arguments.\u00a0\u00a0Instead, they based their case on the \u201cFree Speech\u201d clause of the First Amendment,. The claimed that Ms. Smith has the \u201cfree speech\u201d right to post her message for gay couples.\u00a0\u00a0<\/p>\n\n\n\n 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. <\/p>\n\n\n\n There is a logic in Smith\u2019s argument. It\u2019s her \u201cart\u201d, her effort that creates the website, just like it was the baker\u2019s \u201cart\u201d that created the cake. It\u2019s not like she\u2019s renting them tables, or providing the deviled eggs. If she is forced to take on a gay couple\u2019s website, then she is required to use her creative talents to make them \u201clook good\u201d, something that she doesn\u2019t believe. <\/p>\n\n\n\n And let\u2019s get past the fact that she was never asked, and in fact, there is no damage done in this case.\u00a0\u00a0The Supreme Court has accepted a \u201chypothetical\u201d case.\u00a0\u00a0But it also opened the door to a whole series of other hypotheticals, of \u201cwhat ifs\u201d.<\/p>\n\n\n\n What if she didn\u2019t agree with biracial couples or Jewish couples, or Roman Catholic couples. Should she have the \u201cright\u201d 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\u2019t 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 \u201cart\u201d was the food. Does she have the right to refuse service to gays, or to Jews, or to Blacks?<\/p>\n\n\n\n Listening to the Justices question the opposing counsel, much like the \u201cnotecard\u201d professor back in Law School, it was clear that the conservative justices are very willing to rule in Smith\u2019s favor, expanding the right to \u201cnot serve\u201d based on \u201cfree speech\u201d as well as \u201creligious freedom\u201d. And what door does that open?<\/p>\n\n\n\nCause of Action<\/h3>\n\n\n\n
No Message, No Case<\/h3>\n\n\n\n
Free Speech<\/h3>\n\n\n\n
Jim Crow Redux<\/h3>\n\n\n\n