A historical low point for the Supreme Court

As everybody still following the Supreme Court knows, the court recently ruled 6-3 in the case of 303 Creative v. Elenis that a website designer with religious beliefs against same-sex marriage had the First Amendment right to turn down same-sex couples if they asked the designer to make wedding websites for them.

But should anybody take the opinions in 303 Creative seriously?

It turns out that no same-sex couple filed a complaint against a wedding website designer, and no actual same-sex couple were parties to the case.

A Colorado website designer instead initiated the legal action. And the designer went to court even though she has never been in the business of making wedding websites. She requested a declaratory judgement that guaranteed her First Amendment right of refusal against any claim of same-sex discrimination under state law ifshe ever were to expand her business to include such websites.

The designer claimed that her company was actively thinking about doing so. And after she filed, her lawyers in court filings added that she had received a call of interest from the member of a same-sex couple planning to marry. But that claim seems to have been fictional, and Justice Neil Gorsuch’s majority opinion stayed away from citing it.

The designer also made sure to claim that she would want to write her own expressive stories about couples and not just take down their thoughts. In other words, the unmistakable smell of a case ideologically manufactured for First Amendment expression from the designer was clearly in the air.

While a good deal of commentary in the media has rightly focused on the very debatable nature of this case, I haven’t seen any that focuses on the following statement about the First Amendment rights of the designer’s company: “The company could, for example, offer only websites with biblical quotations describing marriage as between one man and one woman.” 

This lack of coverage seems like quite an oversight, because it appeared in Justice Sonia Sotomayor’s opinion for the three dissenting justices. 

Sotomayor’s dissenting opinion has been described in the media as “impassioned” (The New York Times) and demonstrating “the depth of her disagreement” (The Washington Post) against the majority’s view. That’s because the dissent rails for quite a while against the majority’s position that if she ever starts doing wedding websites — again, just if — the designer can flatly reject any same-sex couple’s request to do theirs.

But then on page 27 of her dissent, Justice Sotomayor inserted the above quiet kicker. According to the dissent, if ever required to do a same-sex wedding website, the designer would still be free under the First Amendment to express her religious beliefs. She indeed could choose to emblazon all her websites with “biblical quotations describing marriage as between one man and one woman.”

It therefore seems fair to say that members of the public can readily ask: What in the heck was going on in this supposed case before the Supreme Court?

Would anyone with a modicum of legal experience see this hypothetical and highly stylized affair as something that the United States Supreme Court should be busying itself with?

By the same token, would anyone see any real dissent since all nine justices seem to agree that any designer working for a same-sex couple is free to put biblical quotations on a wedding website saying their marriage is invalid?

And finally: What same-sex couple in their right minds would ever hire a website designer who would so rebuke their marriage? 

I have been to law school. I understand there are theoretical arguments in favor of the designer. And I can grasp the theoretical First Amendment distinction that Sotomayor draws between saying designers cannot turn down same-sex couples but affirming they can state their opposing biblical views on all their websites.

But with all due respect to our current nine justices, such points seem worthy only of law professor hypotheticals and law review debates. In terms of practical law, it seems hard to avoid the conclusion that the opinions in 303 Creative represent a historical low point for the Supreme Court.

Although full of sound and fury, Creative 303 signifies nothing about a real legal case and very little about real distinctions among the justices. In this non-case, rhetorical culture-war jousting triumphed over good judicial sense.

Mac McCorkle graduated from Duke University Law School and clerked on the United States Court of Appeals for the Sixth Circuit. He is now a professor of the practice at Duke’s Sanford School of Public Policy.