Tangle - The same-sex wedding website case.

Episode Date: December 7, 2022

In today's issue, we're covering the Supreme Court case where a Colorado web designer is challenging the state's anti-discrimination laws. Plus, a question about Trump's children and comparing them to Hunter Biden.You can read today's podcast here, today’s “Under the Radar” story here, and today’s “Have a nice day” story here.You can subscribe to Tangle by clicking here or drop something in our tip jar by clicking here.Our podcast is written by Isaac Saul and produced by Trevor Eichhorn. Music for the podcast was produced by Diet 75.Our newsletter is edited by Bailey Saul, Sean Brady, Ari Weitzman, and produced in conjunction with Tangle’s social media manager Magdalena Bokowa, who also created our logo.--- Send in a voice message: https://podcasters.spotify.com/pod/show/tanglenews/message Hosted on Acast. See acast.com/privacy for more information.

Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight.

Interior Chinatown is streaming November 19th, only on Disney+. Chinatown is streaming November 19th, only on Disney+. From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle Podcast, the place where you get views from across the political spectrum. Some independent thinking without all that hysterical nonsense you find everywhere else. I'm your host, Isaac Saul, and on today's episode, we're going to be talking about a case in front of the Supreme Court where a Colorado web designer is challenging

the state's anti-discrimination laws. It's a really fascinating and complicated case that I think we've made fairly understandable and simple with a lot of compelling arguments, frankly, that I'm excited to discuss and talk about today. As always, though, before we jump into it, we'll start off with some quick hits. First up, Senator Raphael Warnock, the Democrat, defeated challenger Herschel Walker, the Republican, in Georgia's Senate runoff by a 51.4% to 48.6% margin, giving Democrats a 51 to 49 majority in the Senate. Number two, Representative Andy Biggs, the Republican from Arizona, announced his plans to run against House Minority Leader Kevin McCarthy, the Republican from California, for Speaker of the House. Number three, 25 people were arrested in Germany on suspicion of planning

an armed coup to overthrow the government. Thousands of officers carried out raids across the country. Number four, Argentina's vice president, Cristina Fernandez, was found guilty of embezzlement and fraud, totaling more than $1 billion. She was sentenced to six years in prison and barred from serving in public office. Number five, a jury found the Trump organization guilty of tax fraud, and it may face up to $1.6 million in fines. Neither former President Trump nor his family members were charged in the case. Number six, a quick bonus quick hits. Ukraine's President Volodymyr Zelensky was named Time's Person of the Year.

It's Monday. We close in on four o'clock and we start with the Supreme Court in Washington that may be deciding what is and is not protected under Colorado's anti-discrimination law. It is a fight between LGBTQ rights and free speech. The U.S. Supreme Court's conservative majority on Monday signaled sympathy toward evangelical Christian web designer Lori Smith. Smith wants to be able to turn away LGBT couples without penalty and is challenging a Colorado law that forbids discrimination based on sexual orientation. On Monday, the Supreme Court heard oral arguments

in the case of Lori Smith, a website designer who wants to expand her business to include creating wedding websites, but only serving heterosexual couples. Specifically, Smith wants to post a message on her wedding website with a note that she will not create websites for same-sex marriages or any other marriage that is not between one man and one woman. She's being represented by lawyers from Alliance Defending Freedom, or ADF. Smith, a devout Christian, is challenging a Colorado law that prohibits most businesses from discriminating against LGBTQ customers, saying a requirement for creating a website for a same-sex wedding would violate her right to freedom of speech. The law at the center of the case is Colorado's Anti-Discrimination Act, or CADA,

also known as a public accommodation law. It requires that businesses that serve the public serve everyone. Unique to her case is that she is challenging the law preemptively before building out or selling any custom wedding websites. In oral arguments, Colorado Solicitor General Eric Olson said the law targets discriminatory sales, not a speaker's message, arguing that a store can decide to sell only Jewish-themed items, but it cannot refuse to sell those items to Muslim or Christian customers. He argued that exempting Smith from this law on the grounds of her sincere religious beliefs would open the door for genuine discrimination against LGBTQ customers. Smith's lawyers, meanwhile, say she

Smith says she is asking the court to uphold existing precedent, including a 1995 decision in Hurley v. Irish American Gay, Lesbian, and Bisexual group in which the court ruled that Massachusetts could not require the private organizers of Boston's St. Patrick's Day parade to allow an LGBTQ group to march in the parade. During oral arguments, Justice Sonia Sotomayor made the case that to rule in Smith's favor would mark the first time the court ever allowed a commercial business to refuse a customer based on their race, sex, religion, or sexual orientation. Chief Justice John Roberts countered that the court has never approved efforts to compel speech that is contrary to a speaker's

belief. The five other conservative justices on the court appeared to agree with him, signaling a likely ruling in favor of Smith. Key to the case is defining the act of creating a wedding website and whether it constitutes speech. The Tenth Circuit Court describes Smith's hypothetical as pure speech, but still ruled against her, saying she had monopolistic control over her specific designs, which sent the case to the Supreme Court. Previous cases challenging the Colorado law, like Masterpiece Cake Shop v. Colorado Civil Rights Commission, were ruled on narrow grounds that did not address the tensions between the First Amendment protections and Colorado's anti-discrimination laws. In their arguments, the liberal justices seem to question

whether creating a website is an act of speech at all. However, Smith makes the case that creating such a website is an explicit expression of speech, and her argument is that the government cannot force her to create a website she finds objectionable. Oddly, in its defense of the law, the state seems to agree with her. In its brief, the state acknowledges that a web design company gets to decide what design services to offer and whether to communicate its vision of marriage through biblical quotes on its wedding websites. Instead, the state argues that once Smith creates a specific web design for the public, she must provide the same service to people of all sexual orientations. Today, we're going to take a look at some arguments from the right and the left, and then my take.

First up, we'll start with what the right is saying. Many on the right classify Smith's website building as an act of speech and say the court should side with her. Some say the state is using incongruous hypotheticals to frame their arguments. Others say this is not an area where the government should be able to compel someone to create something. In Newsweek, Ilya Shapiro said the court should reaffirm all Americans' right to choose what to say. Fundamentally, 303 Creative is about protecting the constitutional right to free expression while allowing the government to generally ensure equal access to commercial goods and services, Shapiro said. Although gay couples cannot be treated as social outcasts or

as inferior in dignity and worth, as the court observed in Masterpiece Cakeshop, the First Amendment's protection of freedom of speech must also include the freedom not to speak. A freelance writer cannot be punished for refusing to write a press release for the Church of Scientology, even if he is willing to work for other religious groups. A musician cannot be punished for refusing to play at Republican Party rallies, even if he will play at other political events, and even if the jurisdiction statutorily bans discrimination based on political affiliation. Likewise, a photographer or wedding singer should not be punished for refusing to take photographs celebrating a same-sex wedding or for refusing to sing at such a wedding, regardless of what any statute says. Indeed, the court has generally recognized that the First Amendment protects the

right to speak, or to refrain from speaking even when the government cites its compelling interest in forbidding discrimination, he wrote. Fortunately, 303 Creative doesn't call on the court to define the line between speech and conduct with precision, as there's no question that the underlying conduct here involves compelled speech. But it's so easy to appreciate how the case implicates speech rights, as even the 10th Circuit did, the court has a prime opportunity to reiterate the basic holding of cases like Hurley v. Maynard, where it held that a motorist could decline to carry New Hampshire's live free or die license plate motto. In National Review, Rachel Morrison said same-sex wedding websites are fundamentally different than a baker refusing to serve a gay customer. The Tenth Circuit below

acknowledged that Lori's wedding websites are unique services and pure speech, but under Cotta, she is forced to create a custom website she otherwise would not. The court found Lori was willing to work with all people regardless of sexual orientation and was generally willing to create graphics or websites for LGBT customers but would not design websites celebrating same-sex marriages for anyone. The same is true for all her custom websites. Lori decides whether to create a website design based on the message requested, not the person making the request. Nevertheless, Colorado falsely frames the case as merely requiring a business that opens its doors to the public to serve all customers and its law as protecting customers'

equal dignity and equal access to goods and services. To support its position, Colorado provides the following analogy. The act is not, as the company claims, compel a Hindu calligrapher to write flyers proclaiming Jesus is Lord. It requires only that if the calligrapher chooses to write such a flyer, they sell it to Christian and Hindu customers alike. The underlying premise of this analogy is that the custom wedding websites for same-sex and different-sex couples are the same product. They are not, Morrison says. As a group of website and graphic designers argued in their 303 Creative Amicus brief filed in support of Neither Party, a custom product is materially different than a mass-produced product.

Aside from wedding websites having, at a minimum, different names, themes, colors, texts, dates, and pictures, male, female, and same-sex wedding websites are different because a wedding between those of each sex is inherently different from a wedding between those of the same sex, and the websites convey a different message and point of view about marriage. of the same sex, and the websites convey a different message and point of view about marriage. In the New York Times, the priest and writer Tish Harrison Warren wrote about respecting the religious views of others in order to promote a pluralistic society. Of course, one can think these scriptures and the historic beliefs of Christianity are wrong, that they have been understood incorrectly, that they need to be reinterpreted in light

of modern insights about sexual orientation and same-sex relationships, or that they need to be reinterpreted in light of modern insights about sexual orientation and same-sex relationships, or that they are simply antiquated and irrelevant, Warren wrote, those are important arguments currently being had by essentially every major religious group on earth. Beyond that, religious conservatives could make a solid case that people have a moral duty to offer hospitality to those who hold different beliefs and should therefore bake the cake or make the website. But a commitment to religious liberty means that the government should not choose a side in these interfaith debates. One doesn't have to agree with a particular religious belief in order to affirm that law-abiding people have a right to live

according to their conscience, Warren said, and there is a vital distinction to be made between general discrimination against a group and declining to participate in an act one finds immoral. Ms. Smith serves gay customers. She would not refuse to build a website for someone simply because the person is gay. She specifically does not want her services to be used as part of a celebration of a same-sex wedding. We make similar allowances for other ideological differences. A pro-choice artist should not be compelled to make a logo for a pro-life rally. A progressive party planner should not be required to take on a Trump PAC as a client. A gay web designer ought not to be forced to create a site promoting a conservative church. All right, that is it for the rightist saying, which brings us to what the left is saying.

Many on the left argue a ruling in Smith's favor would create a slew of openings for legal discrimination. Some say the case should be dismissed because it is a hypothetical without any real facts or case to explore. Others argue this is the beginning of the Supreme Court's assault on LGBTQ rights. In Slate, Mark Joseph Stern said the true origin of 303 Creative is much less sympathetic than the lawyer-crafted narrative. Colorado law does not compel Smith to create a wedding website for a same-sex couple or for anyone else. It only insists that once Smith has designed a wedding website, she must allow same-sex couple or for anyone else. It only insists that once Smith has designed a wedding website, she must allow same-sex couples to purchase that product, Stern wrote. In essence, Colorado says she must sell her website template to all customers, regardless of their identity.

She need not create a new template or speak in support of any marriage. At most, if she makes a wedding website for Henry and Fiona, she must sell the same template to Henry and Frank. As Colorado Solicitor General Eric Olson acknowledged, she could even make a template that, for some reason, condemns same-sex marriage. This speech is permitted. Colorado targets only the conduct of refusing to sell that product to gay people. A lot of these questions ran into the fundamental problem with this case. There is no live controversy, and therefore no facts against which the justices could test their legal theories, Stern says. It would be supremely helpful to know, for instance, how Smith would have responded to a request from a same-sex couple. There is a legal difference between saying no because you're gay, which discriminates on the

basis of identity, and saying no because you're celebrating a gay wedding, which, according to ADF, is discrimination on the basis of the message. But because the central clash in 303 Creative identity and saying no because you're celebrating a gay wedding, which, according to ADF, is discrimination on the basis of the message. But because the central clash in 303 Creative is purely speculative, no such facts exist. So the justices indulged in increasingly outlandish hypotheticals that drew them further and further from the case at hand. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight.

Interior Chinatown is streaming November 19th, only on Disney+. In Vox, Ian Millhiser said the case should be dismissed because it is still a hypothetical. Suppose an author writes a book called Lesbians Are Immoral. The First Amendment protects nearly all forms of speech, including hate speech, so this book is protected by the Constitution and the government may not pass a law seeking to alter its contents or banning its sale, Millheiser said. Now, suppose that Brenda, who is a lesbian, goes to a Colorado bookstore and attempts to purchase a copy of Lesbians Are Immoral. If the bookstore refuses to sell the book to Brenda because of her sexual orientation, that would violate Colorado's civil rights law, and the bookstore would not be protected by the First Amendment. The same rule applies to any other form of expression, whether it is a website or

a painting or a cake with a pro-LGBTQ message written on it in icing. The government cannot force Smith to design any website she finds objectionable, but it can require her to sell the same web design to all customers, regardless of their sexual orientation. Which brings us to the reason 303 Creative case should be dismissed. Lori Smith has never actually refused to design a wedding website for a customer who wishes to buy one from her, he said. As Colorado says in his brief, Smith's company has yet to build any custom wedding website, serve a customer, refuse to work for a same-sex wedding, or have the state civil rights law enforced against it in any way. Federal courts are not in the business of deciding hypothetical cases. If at some point in the

future a customer asks Smith to design a particular website, she refuses, and then Colorado attempts to sanction her for that refusal, then she may very well have a valid First Amendment claim. But it is impossible for the Supreme Court to determine whether this hypothetical chain of events might play out in the future. In The Nation, Ellie Mistal said the Supreme Court has officially launched its war on LGBTQ people. As a matter of theory, Smith's case presents an interesting problem. First Amendment protections absolutely prevent the government from compelling speech. A business owner can be forced to pay taxes, but they can't be forced to put up a sign that reads, taxes are good and appropriate, just as surely as I cannot be compelled to write Donald Trump can read and has totally normal sized hands. But all of the tortured hypotheticals in the world can't account for the fact that free

speech analysis doesn't stop where ADF and the conservatives want it to. Smith argues, in essence, that she's allowed to engage in content-based discrimination. She can't be compelled to say gay marriages are cool. She doesn't simply want to be able to discriminate through the content she creates. She also wants to be able to discriminate against LGBTQ people. She wants to be able to deny gay people the ability to frequent her business. That's discrimination, based not on content, but on immutable characteristics of some of her potential customers, Mistal writes. The long history of public accommodation law says

that business owners cannot do that. To put it plainly, a diner owner can absolutely tell me I don't like black people when serving me lunch, but he still has to serve me lunch. He doesn't have a free speech objection to providing me a service that I'm willing to pay for, no matter how deeply he hates me. Smith and the Christian fundamentalists want people to believe that the creation of a marriage website is a speech act. But even if it is, and I'm being incredibly generous by calling wedding HTML for dummies a speech act, denying service to a customer based on their immutable characteristics is not protected speech. It's just hate. All right, that is it for what the left and the right are saying, which brings us to my take. Is it possible to agree with everyone here? I always encourage Tangle listeners and readers to consume the entire podcast or newsletter,

but today especially, if you have just skipped to this part of the podcast, please, I encourage you to go back and listen to the arguments presented in the left and the right stake. I think they're fascinating, and I think they're compelling even more so than usual, which illustrates the complexity of this case. When I first read the outlines of this case, my knee-jerk reaction was sympathy toward the state, mainly because I have LGBTQ friends and family whom I love, many of whom have shared with me their personal stories of being discriminated against. My baseline position is that I want people who are gay or bisexual or trans or queer

or whatever to have equal rights as people who aren't. As I started reading the arguments, though, my rational analysis was sympathy for Lori Smith, the web designer. The idea of the state compelling her to create wedding websites promoting same-sex marriage against her wishes is one of the most troubling brands of government intrusion I can imagine. And then, as I kept reading, I realized that's not exactly what was happening here. If this case were real and not a hypothetical, and the details were presented precisely as Smith and her lawyers defined them, then I would actually side with them. Reading their arguments and the arguments above, it looks kind of open and shut to me. Of course the government cannot compel someone to do work they don't want to do. Of

course the government cannot compel a religious person to endorse same-sex marriages. Of course Smith has the right to create the kinds of websites she wants to and decline to create the websites she doesn't. As a free speech enthusiast, as a writer, as a business owner, all of these arguments hit home for me. For instance, if, as Smith, is creating websites for dozens of different services like political campaigns or dog breeders or contractors, she says she doesn't want to create wedding websites for same-sex marriages, I actually think that's fine. She's not refusing to serve same-sex couples or gay customers, and I'm not sure why any gay couple would want her to design their wedding website anyway. Framed this way, her case would succeed on free speech grounds. Even Ian Millhiser, one of the most reliably progressive court writers in the country, says this is an uncharacteristically strong argument and a very strong First Amendment

argument. The problem, though, is that we don't have any tangible details to suss out the complicating factors. For instance, rather than say she won't create a wedding website for same-sex couples, Smith could tell a same-sex couple she's happy to work with them, but she won't design a website that features them kissing or describes their union as a marriage. She'd be explicitly protected to take this stance, and the couple and the state can't force her to do otherwise. So no gay couple in their right minds would want to use her, and Smith could effectively decline that work. However, if Smith decided to launch a wedding website business with 10 pre-made designs for customers to choose from, and then refused to sell one of those designs to a gay couple,

that would seem like an explicit violation of Colorado's anti-discrimination law. This is why it's so hard to rule on a hypothetical case with no grounding facts. The details and the nuance matter. This is also why the Supreme Court very rarely takes up cases based on hypothetical issues, and why the argument that this case should be thrown out has a lot of merit. If Smith had come to the court with a real example of a real gay couple actually forcing her with the state's backing to design them a custom wedding website, that'd be one thing. But she isn't. Of course, that doesn't mean the court will throw the case out. In fact, it looks highly unlikely that will be the result here. Instead, it's possible the court tries to

rule narrowly and draw some kind of line about what qualifies as speech or artistic expression and ensure that Smith is on the right side of it to win. Obviously, this could have massive consequences for the country. Millhiser again says, if certain businesses are exempt from civil rights laws because they make products that require a spark of creativity, then it is far from clear which businesses should still be required to follow the law. After all, lots of jobs require at least some artistry. If cake bakers qualify as artists who can defy civil rights laws, then what about jewelers or hairstylists or makeup artists? What about a conservative Christian restaurateur who claims their food is an expression of their most sincere religious values

and therefore must not be served to gay customers? In the end, if this conflict were exactly how Smith concocted it, I think she'd have a good argument for free speech protections. Since the case is entirely a hypothetical issue, though, and the details that should determine its outcome are non-existent, I'm most convinced by the strongest argument that it should simply be thrown out and litigated when there's an actual conflict to address. when there's an actual conflict to address. All right, that is it for my take,

which brings us to your questions answered. Today's question is from Art in Austin, Texas. He said, in today's article, you mentioned Hunter's lucrative career leveraging his father's name. What are your thoughts on whether the Trump children leveraged their father's presidency and their business dealings? So I got this response from so many of my readers who are liberal or left of center.

And the short answer is, yeah, they definitely did. There was really no way around this. It was one of the fundamentally novel and difficult things about Trump's presidency. He understandably refused to give up his businesses to run for president. I mean, it's a really difficult choice to make. I think giving up millions of dollars of business and businesses that are worth billions of dollars to run for office is not a cut and dry answer. And his kids worked for the Trump organization and the businesses continued to operate and benefit from their connection to the White House. So I don't really

think there's any debating this. Eric Trump and Donald Trump Jr. run the Trump Organization, which was taking in millions of dollars a year from around the globe while their dad was president. They have customers on nearly every continent, which raises numerous opportunities for conflicts of interest and quid pro quos with foreign governments. There was one day where Donald Trump and Ivanka Trump would have dinner with Chinese President Xi Jinping, and hours later, rare Chinese trademark approvals for Ivanka's jewelry company were granted. Coincidence? Maybe. Worth investigating? Definitely. Just like with Hunter, my position is that sussing out instances where illegal activity took place is critical, and nobody should be off limits.

What I find funny is how many people on the left write in saying things like, well, shouldn't Trump and his kids be investigated? To which my reply is, they are, on several fronts. The Trump organization was just found guilty on counts of tax fraud and has investigations continuing in multiple entities across New York and the country. In fact, it's difficult to imagine a scenario where the family's business was under more tax fraud and has investigations continuing in multiple entities across New York and the country. In fact, it's difficult to imagine a scenario where the family's business was under more scrutiny than it already is. Alright, that is it for our reader question today, which brings us to our Under the Radar section.

In the last week, widespread demonstrations in China and Iran have led to the relaxation of zero-COVID policies and the potential abolishment of the so-called morality police, respectively. China announced it was scrapping many of its quarantine and testing requirements, as well as curtailing the power of local officials to shut down entire city blocks. Meanwhile, a top Iranian official said the nation is reviewing its mandatory hijab law and claimed the morality police had been abolished. Next up is our numbers section. The amount of money spent on Georgia's Senate race, making it the nation's most expensive race of 2022, was $401 million. The amount of money

spent on just four races in Georgia since the beginning of 2020 was $1.4 billion. The amount of money spent on just four races in Georgia since the beginning of 2020 was $1.4 billion. The number of people whose votes have been counted in Georgia's Senate runoff so far this year is 3.5 million. The last midterm election cycle when the party in power successfully defended every incumbent Senate seat was 1934. The percentage of Trump endorsements who won their races in battleground elections, according to Ballotpedia, is 40%. The percentage of Trump endorsements who won their races in all elections, according to Ballotpedia, was 85%. And last but not least, our Have a Nice Day section. Preet Shandi is setting out to make history. The 32-year-old

British Army officer is aiming to become the first woman to ever cross Antarctica, a 1,100-mile trek without being resupplied. Her attempt to cross the continent from coast to coast would be emblematic of her nickname, Polar Preet, which she earned after becoming the first woman of color to finish an unsupported solo trip to the South Pole. She started her Antarctica journey in mid-November and has been sharing details on Instagram. She expects the trek to take 75 days. People Magazine has the story and there's a link to it in today's episode description. All right, everybody, that is it for today's podcast. As always, if you want to support our work, please go to readtango.com slash membership and become a member.

Or you can just spread the word, share the podcast with friends, give us a five-star rating, all that good stuff. We'll be right back here same time tomorrow. Have a good one. Peace. Our podcast is written by me, Isaac Saul, and edited and produced by Trevor Eichhorn. Our script is edited by Ari Weitzman, Sean Brady, and Bailey Saul.

Shout out to our interns, Audrey Moorhead and Watkins Kelly, and our social media manager, Magdalena Bokova, who designed our logo. Music for the podcast was produced by Diet75. For more from Tangle, subscribe to our newsletter or check out our website at www.readtangle.com. We'll see you next time. becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+.