Reviews |  How Amy Coney Barrett Coached a Christian Web Designer to Provide the 'Right' Answers

Reviews | How Amy Coney Barrett Coached a Christian Web Designer to Provide the ‘Right’ Answers

A main issue in 303 Creative v. Elenis, who the Supreme Court heard on Monday, is whether a Christian website designer’s refusal to create sites for same-sex couples’ marriages violates Colorado’s public housing law by discriminating against those couples by based on their status or if they are protected by the First Amendment. So it seemed like an incredible mistake when the creator’s lawyer initially admitted that the creator would have no problem creating a website for an opposite-sex couple that rejects biblical definitions of marriage.

The bottom line is that the case appears to be a foregone conclusion, with Chief Justice John Roberts and Justice Brett Kavanaugh looking set to join other conservatives in a decision for Smith.

“Yes, she would publish the site,” began to respond Kristen Wagoner, the lawyer for the anti-LGBTQ Alliance Defending Freedom. It was a remarkable moment: Waggoner’s response would have meant, in effect, that his client, Lorie Smith, was discriminating based on the couple’s status, destroying her legal case.

But, before this Supreme Court, it was not going to hold. Two of Waggoner’s ideological allies on the Supreme Court — Justices Amy Coney Barrett and Neil Gorsuch — stepped in to correct his response. And that was, ultimately, the real message on Monday — a message that conservative justices have been sending over the past year: Facts and precedents (and what the lawyers say, apparently) didn’t matter. matter and will not stand in the way of their ideological and extremist ends.

It all started when Barrett asked a question to get Wagoner to say that his client’s opposition to setting up websites for same-sex marriages was based on the message. Referring to a hypothetical heterosexual couple, Barrett said that “what they want to write under the engagement story page goes something like this: We’re both cisgender and straight, but that has nothing to do with our relationship that transcends these categories. We knew we were kindred spirits from the moment we met and so on. Would your client publish this site? »

When Wagoner said yes and continued with his explanation, Barrett cut her off before she could finish her explanation, pointedly asking, “Even if this account, I suppose, is inconsistent with her biblical views on marriage?” Later, to make the point even more transparent, Barrett said, “So it’s the message and not the sexuality of the couple who asked them to express it that counts?”

With Barrett’s coaching, Wagoner corrected his trajectory by saying yes.

Later, Gorsuch also argued that Waggoner’s initial response shouldn’t count. Noting, “[J]To make sure I understood your interview with Judge Barrett correctly,” he then outlined exactly the position he believed she should take, for his purposes, in the case: “[T]Here are some heterosexual unions your client wouldn’t talk about either, right? »

“Certainly,” Wagoner replied, referring to facts agreed to by both parties below. (The case is hard to argue because Smith didn’t actually start building marriage websites and didn’t deny any same-sex couples and wasn’t told by Colorado that she was breaking the law. Instead, she took the case preemptively, saying she fears state enforcement if she does.)

The exchanges — while illuminating given that Wagoner has long supported these types of cases for ADF, including the Masterpiece Cakeshop case in 2017 — ultimately don’t really matter. What matters are the people who saved his errant response and the vote count they represent.

Although Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson offered compelling hypotheses and pushed back against the particularly aggressive positions of Justices Samuel Alito and Gorsuch throughout the 2½ hours of argument, the bottom line is that the case seems to be lost in advance. conclusion with Chief Justice John Roberts and Justice Brett Kavanaugh looking set to join the other conservatives in a decision for Smith.

When they asked about “line drawing” and “assumptions,” they were actually talking about consequences.

All of this, however, makes some of the questions posed by liberals during the arguments significant on another front. When they asked about “line drawing” and “assumptions,” they were actually talking about consequences.

The case is being treated in the press as “another clash between faith and gay rights,” as the New York Times put it over the weekend, but that’s just what Smith’s lawyers want people believe. A ruling for Smith is also a ruling that more broadly weakens Colorado’s public housing law and, potentially, all manner of non-discrimination laws.

As Sotomayor said, “Where’s the line?”

Specifically, she said: “[H]What about people who don’t believe in interracial marriage or people who don’t believe people with disabilities should marry? »

The best answer Wagoner could come up with was that “it is highly unlikely that anyone would serve black Americans in any other capacity but only refuse to do so in the context of interracial marriage”.

“Well,” Kagan quickly noted, “it’s not impossible.” Before they could continue, however, Alito stepped in to stop their line of questioning – another stoppage for Wagoner from the Tory judges.

Later, however, Jackson posed a specific hypothesis: if a photographer could seek to take only pictures of white children with Santa Claus, all “in sepia tone” to “return”, according to the photographer, to the “right old times “.

Wagoner initially said it would be different, but, when pressed, he admitted, “There are hard lines to draw, and that may be a borderline case.”

In other words, yes, it could be a possibility under the law that Wagoner and the conservative justices want to create.

This was Monday’s argument. Now we’re waiting to see how Alito, Gorsuch and his colleagues put that in writing — and what’s left of our country’s non-discrimination laws in their wake.

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