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Supreme Court Rules in LGTBQ Rights Case; Supreme Court Says Christian Business Owner Can Refuse to Create Same-Sex Marriage Websites. Aired 10-10:30a ET

Aired June 30, 2023 - 10:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

KATE BOLDUAN, CNN ANCHOR: In right now, but let's stand by and see.

[10:00:01]

We're going to be getting -- we've got our teams obviously on it. We're going to be getting those coming in very shortly.

Since Arlette was just talking about student loans, let's talk about that, Elie. What do you see in this case? The justices were very skeptical in orals.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Yes, it was clear, if you listen to the oral argument, that the six conservative justices are not fans of this policy at all. They think it's fundamentally unfair. Chief Justice Roberts kept on giving these hypotheticals, well, why should a student who goes to college get loan forgiveness but not a person who takes a loan to open a lawn care business?

But the legal issue here really is not is this good policy or bad, fair or unfair? The legal question here is what are the limits and extent of what the executive branch, the president, through the Department of Education, can and cannot do? And, essentially, the challengers say you went beyond what Congress allows you to do here. There's a fairly broad law called the Heroes Act that says in times of national emergency, certain student debt obligations can be modified. But the administration's response is, well, we're within the scope of that law.

And so that's really the question. Did the executive branch go beyond the scope of what Congress said they could do?

SARA SIDNER, CNN ANCHOR: I'm just curious about the case going forward when it comes to free speech versus LGBTQ rights. The person who is suing basically hasn't started her business yet. She hasn't faced any hardships. She hasn't suffered any losses. How can someone like that bring a case before you even start your business?

HONIG: Yes, it's a great question. So, this is the second decision that's coming today. We don't know which one is going to hit first. And this is a procedural question. Does she have what we call standing?

Usually, the courts don't issue advisory rulings. You can't go to a court and say, I'd like to know how you'll rule if this happens. You have to wait until the actual harm has occurred. So, we'll see if the court throws it out on that basis or accepts it anyway.

Looking at the oral argument, it sounds like they're going to take on this case and decide it on the merits. They're going to say, look, she's a web designer. It's inevitable that she will be posed with this question.

JOHN BERMAN, CNN ANCHOR: All right. We are hearing that the first case up is the Colorado case, which has to do with, as you were just talking about, whether a website designer can refuse service to a same sex couple.

Laura Coates, if we can bring you in here, we do not yet know what the ruling is, but the way this ruling is delivered will be oh so important, because how wide they open the door is really what's at issue here, Laura.

LAURA COATES, CNN CHIEF LEGAL ANALYST: Absolutely. And this case is so critical on a number of fronts. One, because it deals with the issue of what is free speech, what constitutes free speech. This is a web designer I had a chance to interview after she had the oral arguments in this very case and asked her that very question about why in a prospective world she wanted to bring this case.

And one of the things she said was that she wanted to be able to be sure, essentially, that one day, if she were in fact asked, or that she could be able to create her own version of art and free expression in a way consistent with her own personal beliefs.

Now, what Colorado has been saying is, first of all, in the instance of free speech, this is an anti-discrimination basis that they're actually arguing about. The law in Colorado, they say, is about regulating sales, not speech. She's free to be able to make whatever kind of websites she would like as templates or otherwise in a wedding venue or context, but yet she cannot deny those services if it's available to one versus another.

People may remember Colorado as the state where you have the case involving wedding cakes. This is not that. This is a very different one.

BOLDUAN: Laura, stand by. Let's get back over to Jessica Schneider. She's got the details on what the justices are saying case of 303 Creative. Jessica, what's the decision?

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Kate the Supreme Court deciding firmly on the side of the wedding website designer, saying that that Colorado law that prohibits discrimination on the basis of sexual orientation, that that actually violates this wedding website's designer First Amendment rights.

So, this is a 6-3 decision. This was written by Justice Neil Gorsuch, the decision just coming down. But in the time I've had to glance at it briefly, we're seeing that this, again, is a 6-3 split with the liberal justices really lashing out against this decision. And it's once again Justice Sonia Sotomayor with that very biting dissent where she says, for the first time in our history, this court is interpreting the Constitution to allow discrimination, because that's exactly what the liberal justices feared and that they voiced during the arguments in this case, that once you open the door to this wedding website designer to refuse to service same sex couples on the basis of her free speech rights, what other doors does it open? What other businesses can then claim that they are creative artists or creative business owners that operate on the basis of free speech and expression and would take issue with servicing clients that they don't necessarily agree with?

[10:05:01]

So, I'm just getting. Into the opinion a bit more, but the takeaway here is that this wedding website designer has proved victorious, whereas she wasn't in the lower courts and the Supreme Court in a 6-3 ruling, ruling on her side, saying that this Colorado law violates the First Amendment by saying she can't discriminate against same sex couples. Guys?

BOLDUAN: All right, dig into it, Jessica, and we'll get right back to you as we're going to start looking through how Neil Gorsuch writes for the majority here.

BERMAN: Elliot Williams, let's get you in on this conversation now. Again, we're reading the opinion and we need to find out the language here. So, a wedding website, a company can refuse business based on First Amendment grounds. The question really will be, as we dig through this language, refuse business to whom and to how many and to how strong the religious rationale has to be.

ELLIOT WILLIAMS, CNN LEGAL ANALYST: So what's interesting here, John, in the I think three minutes I've had to read about 70 pages, is that what the court here is doing is really pitting this idea of First Amendment rights against sort of this question of, well, what constitutes discrimination and so on.

And there's some pointed and powerful language from Justice Gorsuch that we're seeing. And just to pull out a line or two that struck me right here, it's the First Amendment's protections belong to all, but here's the clause that struck me, not just to speakers whose motives the government finds worthy.

And it's this idea, and I think that's a little bit of a zinger from Justice Gorsuch, on the idea that this jurisprudence is hinging around the fact that while people find gay rights to be popular or trendy or it's sort of within the spirit of where a segment of the country is. And Justice Gorsuch is sort of attacking that a little bit, making the point that sort of we have to hold our noses in a way and sometimes rule against popular sentiment.

Now, notably, this is a 6-3 decision. I really do want to read the dissents here and see how aggressively the dissenters attacked the rationale behind the opinion, because we'll just have to see there. But, of course, we're still going through it. SIDNER: All right. I want to bring in Laura Coates. I do want to quickly read a little bit more of the opinion that is interesting here. Gorsuch says that the First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands, because Colorado seeks to deny that promise, the judgment is reversed. What is your reaction to this and what the fallout may well be? A lot of people worrying about things like Jim Crow. Could somebody decide that they want black folks to come in the backdoor because they don't want them in their store? I mean, how far might this go?

COATES: Well, we have to distinguish between free speech in terms of the creative expression and how one markets or makes their art available and those who might violate other reasonable accommodation laws or laws that are already designed to prevent the scenario you just spoke about. So, there'll be a discussion about where this leads.

But I had a chance to ask this particular plaintiff after the oral arguments as to why she had filed this lawsuit. She talked about clarifying the rights that she would have or trying to avoid the risk of being sued with uncertainty as to how entering the wedding website business she might be treated. Listen to what she had to say.

(BEGIN VIDEO CLIP)

LORIE SMITH, PLAINTIFF IN 303 CREATIVE V. ELENIS: My case is not only about me and my artwork, but also protecting the LGBT artist or graphic designer who should not be forced to create custom artwork that opposes same sex marriage.

COATES: So no one -- just so I'm clear, no one has yet asked you to create a website for a same sex couple. You're talking about this as a speculative notion that it might happen one day, and you didn't want to. So, someone has asked you?

SMITH: I have had requests for same sex wedding.

COATES: And what have you done?

SMITH: I'm unable to enter the wedding industry because the Colorado law would come after me and treat me in a way that's consistent with the way it's treated other people of faith.

So, I took a stand to not only protect my right, but the right of everyone. Everyone should be free to create artwork consistent with what they believe. And so I shouldn't have to sit around and wait to be punished to really challenge this unjust law in Colorado.

(END VIDEO CLIP)

COATES: So this speaks to the issue that, on one hand, Elie was raising about the idea of why this person before the court normally think about standing in terms of somebody having an actual controversy, an actual harm that is either tangible or one that can be computed in some way. And you contrast that with the prospective harm that she was hoping to avoid in the form of a lawsuit. I think, ultimately, this case is going to examine what the parameters and constraints of free expression are and the tension surrounding communities of faith and the idea of expression of religion.

Now, one comment that was often talked about in the oral arguments was again about this prospective notion of harm, but also about how, as a society, the government oftentimes regulates certain aspects of speech as they are under a particular analysis, whether it is a reasonable time, place and manner restriction, for example, whether it's of a threatening nature, whether your rights end where mine begin this general philosophy.

[10:10:24]

And so combing through this opinion will be very, very telling in terms of what domino effect this might have.

BOLDUAN: Laura. Stick with me, Elie, I'm seeing a line from Sotomayor's dissent here. What I'm seeing is that Gorsuch is still reading from the bench, the majority. But from the dissent today, the court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.

I'm wondering, what's the difference between a wedding website and a wedding cake?

HONIG: Yes.

BOLDUAN: And this gets to the 2018 case.

HONIG: So there's a great question here as to what is speech and what is conduct? And this becomes an argument that was hotly debated at oral argument. There is a question of if you're creating a wedding website, are you actually expressing anything? Justice Kagan said, I have a couple of clerks who are about to get married. They're putting together wedding websites. There's nothing really artistic or expressive about it. And so it should fall more along the lines of conduct. For example, the person who provides the chairs to the reception, there's no speech involved in that, so it's not protected by the First Amendment.

Here, the court has found this is speech, there is expressive content here, and, therefore, it is entitled to First Amendment protection. But that leads to all sorts of questions. How about catering? Is there and artistic, expressive --

BOLDUAN: This just opens the door to more and more lawsuits, is what we're going to see, right?

HONIG: Absolutely. This case, unlike the student loans case, by the way, when we get the student loans case any moment now, that will be yes or no, it's on or it's off. This case is going to lead to further litigation.

BERMAN: Because where is the line? In theory, and as I'm reading this, in fact, I just saw a quote from Gorsuch, I think somewhere here that I can pull up, states may protect gay persons, this is from Gorsuch, just as they can protect other classes of individuals in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment shares.

HONIG: Exactly.

BERMAN: Right?

HONIG: Yes.

BERMAN: At the same time, this court has long recognized that no public accommodation law is immune from the demands of the Constitution. In particular, this court has held public accommodation statutes can sweep too broadly when deployed to compel speech.

So, I suppose --

BOLDUAN: So, it's different levels of expressions, I guess?

BERMAN: I suppose this wedding website designer, once she actually does go into business, can't say, you can't come in the store.

HONIG: Right.

BERMAN: Right? And there are some things that maybe that I could be forced to do, but designing a website for a gay wedding is not one of them.

HONIG: Right? I mean, that was one of the hotly contested questions here. Can she turn away, let's say, if a biracial couple comes in or an interracial couple comes in, right? And that's the concerned voice in the dissent. Where's the line here?

BERMAN: Well, if she doesn't want to make it, if she thinks that would infringe on her free speech, I have to believe by course this reasoning, insofar as I've read it right now, she could.

HONIG: Right. I mean, that's the concern of the dissent here. Where do we draw a line? And we have -- look, sexual orientation is a protected class. It's a constitutionally protected class. You are entitled to constitutional protection, not without limits, not absolutely. And so there's a balancing that has to be done here.

The countervailing line drawing question that the majority is saying is, well, but is the government going to decide what is good or acceptable speech as opposed to bad or unacceptable speech, and they point out the First Amendment protects speech that people like and don't like just the same.

SIDNER: The difference between these two cases, it's not just about the bakery versus the website, right?

HONIG: Right. SIDNER: There is a religious section here that was not in this case. This was about free speech. That one was, right, about --

HONIG: Different attacks on the same law. So, both of these cases involved a Colorado state law prohibiting discrimination against LGBTQ people.

In the cake case that came a few years ago, the argument there was religious freedom. Now, they've tweaked it to say, well, freedom of speech.

And I should note, in the cake case, that case was sort of thrown out on a very narrow procedural ground for the court. So, what --

BOLDUAN: Then they even acknowledged they're like, we're really kicking the can down the road on this one.

HONIG: They copped out and they acknowledged it. They copped out and they kicked the can down the road too, in large part, today.

BOLDUAN: Let's go back to Laura on this. I'm being told that Sotomayor is reading from her dissent from the bench, Laura. And I said, and I'm looking for that quote again that I had picked up from her dissent, which is marking what this moment in history means when it comes to this decision in her dissent, saying for the first time in its history, the Court is granting a business open to the public a constitutional right to refuse to serve members of a protected class.

COATES: This is, again, taking a step back, it's been years since we've even heard from these Supreme Court justices on the bench reading aloud their opinion.

[10:15:02]

And then in successive days, we are now seeing just the sheer nature of these arguments and how they are particularly contentious issues.

I had a chance to speak to the attorney for this plaintiff after oral arguments to the very point that she's addressing there in her dissenting opinion, the idea of what this might look like for those who are hoping to express themselves creatively and are running up against this very notion yu describe in that particular quote. Listen to what the attorney had to say.

(BEGIN VIDEO CLIP)

COATES: What do you say to the retort that says, look, this is discrimination? You have a product, but you just don't want to sell it to me because I'm a same sex member of a couple.

KRISTEN WAGGONER, ATTORNEY FOR COLORADO WEBSITE DESIGNER: Because a product isn't the same as speech. And certainly public accommodation laws apply to millions of transactions every day. But when we're talking about asking someone to use their heart, their head and their hand to imagine and create a message using traditional blending art with technology, that's speech, that's not just a product. And just as the LGBT designer doesn't want to have to celebrate same sex marriage or a pro-abortion photographer doesn't want to have to film or photograph a pro-life rally, we all should have the freedom to decide what ideas are worthy of expression. It is the what, not the who. That is the critical distinction.

(END VIDEO CLIP)

COATES: So, in looking at this opinion, the court, frankly, and the majority opinion, uses some of those same analogies that were referenced during that oral argument, and, of course, the analogy she raised right there then and there. And they seem to make the connection here that it's about the money aspect of it, that simply because it is an amount of money or a commercial venture, that does not usurp the right of somebody to say, no, you would not have.

At one point, in their opinion, they talk about the idea of the government could require an unwilling Muslim movie director to make a film with a Zionist message or an atheist muralist to accept a commission celebrating evangelical zeal. They talk about the different analogies that were used in oral arguments and beyond.

But at its core principle, as Sotomayor is pointing out, there is now a bit of a Pandora's Box that could be open to suggest that one could simply give a particular reason and that would be enough to overcome some of the reasonable accommodation or accommodation laws we have in this country geared at carving out and destroying acts of bigotry.

And so this is going to now be a monumental decision for those who could maybe say, well, hold on, I'm not acting in the way that you're saying. It's my creative expression. It's a matter of the heart, a matter of the mind. It's the what, not the who. You can imagine this being used in a number of instances to explain behavior, to avoid what the majority called the penalty of the law.

SIDNER: All right. Thank you, Laura Coates. I know you will stay with us. We are expecting that second decision that affects about 43 million Americans, the student debt decision.

But while we are continuing with this and waiting for the court, I do want to read something that Gorsuch said, because it speaks to the idea of how far this can go. He said, the parties agree that Ms. Smith, who is the person who brought this case, will gladly create custom graphics and websites for gay, lesbian, or bisexual clients or for organizations run by gay, lesbian, or bisexual persons, so long as the custom graphics and websites do not violate her beliefs.

That seems a little confusing, and I will say that because there are people from different religions that believe that gay folks should not exist. And now he's saying, oh, well, she will do things for people who are gay, lesbian or bisexual. It's just that she won't do this web -- she won't do a website for them if they are married because that goes against her First Amendment right.

HONIG: That's a tricky distinction here. You're saying she will provide services to LGBTQ people, just not the ones she objects to, just not the services or the behaviors that she objects to, which strikes me as sort of a bit of hair-splitting.

SIDNER: I'm confused.

HONIG: Yes, and keeps the door open to -- again, to discrimination prevailing in this case or yielding to the First Amendment rights. And that's, again, the fundamental dispute here is between Colorado's anti-discrimination statute and where does a person's First Amendment speech rights end.

BERMAN: Elliot Williams with us also, jump in here, because what is speech, right? What is speech? Which is something, by the way, the Court has weighed in on other subjects as well, campaign donations are speech, right? So, what in business is not speech now if a business owner is allowed to use their First Amendment rights to not do something?

WILLIAMS: A couple of things, John. It's a very important question, because speech isn't just the words that come out of someone's mouth. Speech is expressions, acts of conduct, of individual, and, in effect, endorsing, at least as the court is saying today, some idea or concept, right?

[10:20:05]

I think the tricky balance that's striking here, this is picking up on the last points that both Elie and Laura just made, is that, okay, fine, we can all stipulate, as the court really does here today, that discrimination against people on the basis of their sexuality is itself unlawful, right? And I think they make that point quite clearly. It's not a question of discriminating against people on account of their identity. It's discriminating against people on account of their behavior.

And I think when you're trying to carve up where the line is between a person's identity and the acts they engage in, that's a very, very tricky legal one. And so the question is, I have no problem with gay people under the law or this organization has no problem with gay people under the law, it's just the things that gay people do, and getting married is one such thing.

And I think that's where you're going to see years of litigation over where the line is on this. And this is something we've been talking about this over the course of the last day, in the context of the affirmative action decision, it's often not what the Supreme Court does but it's the open questions they leave that dictates the future of American law.

And I think you're going to see a lot of litigation now over this tension between where does the sort of the identity of the person that you can't discriminate against but up against the actions of the person that at least the court is saying today, you really can.

BOLDUAN: And, Elliot, what happens with this Colorado law now, I mean, with this -- their antidiscrimination law that's been that's been in place? I mean, the attorney general -- I was just looking, the attorney general, the way that they had been talking about it even last year, this state's anti-discrimination law regulates business sales, not speech. They say this isn't about speech, their position was when they were taking this case, when this case was going before the court. Does this just blow a hole right through it?

WILLIAM: No, I don't think so. And, again, I'm going to give you a very lawyerly answer and say that we're going to wait until I've read the opinion really closely to sort of answer that, to see what they actually do with the law.

This wasn't really an attack on the law on its face. It's a question of this person's rights to speak or engage in conduct, First Amendment protected conduct, and see how it squares with the law. Now, the question is, it does create a bit of an opening, I think, in what businesses can do with respect to actions by individuals, not the identities of individuals themselves.

And, again, to your point and to your question, Kate, that's just going to be very hard logically and legally to carve up.

BOLDUAN: Yes,

BERMAN: I do have another quote from Gorsuch here that's coming across my screen, and it gets to the issue that we're talking about right now. Determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions, but this case presents no complication of that kind, Elie.

HONIG: Yes. So, there was a debate in the argument of this case about is creating a wedding website an artistic expression, or is it just sort of a mechanical service? And the court firmly decides here that, yes, of course, there is some level of speech, of content, of artistic expression in designing a wedding website.

And if you want to think about what some of the broader implications for this, let's just keep it within the scope of weddings. Now, this could have implications beyond weddings. But if this is the law, it is the law now, then let's take a wedding band. Clearly, there's artistic expression involved in being a wedding band. This decision now says if you're a wedding band in Colorado, you can say, no, we don't want to do gay weddings, we don't want to perform at gay weddings.

Take somebody who designs invitations. I think, pretty clearly, if there's artistic expression involved in a website, there's got to be artistic expression involved in creating an invitation, same thing.

So, in Colorado now, this opens the door to anyone who's providing that type of service to say, no, we don't have to provide service to a gay wedding. But on the other end of the spectrum, let's take something that pretty clearly is not artistic expression, again, to go back to an example that was used in the argument here. The person who provides tables and chairs, that person is not going to be able to say, well, I object because I don't think anyone could argue there's artistic expression in providing chairs.

BOLDUAN: How about let's go back to food? If you took -- food -- I'm just presenting gray area here, right? HONIG: It's a great question. I mean, is there expression of art? I've worked for caterers. The ones I work for certainly are not expressing art, but I think there's higher end ones. If you talk to chefs, they would say, absolutely, what I put on the plate, how I present it, there's an artistic expression in that. Yes. So, that's one of the interesting hypotheticals or maybe someday that will be not a hypothetical. Students will study, and maybe will come back to the court.

SIDNER: I want to bring in Laura Coates again, who has been with us through all of the different decisions over the past two days.

[10:25:01]

But I first want to read from Sotomayor's dissent. It is flaming hot, if you will.

She says by issuing this new license to discriminate in a case brought by a company that seeks to deny same sex couples the full and equal enjoyment of its services, the immediate symbolic effect of the decision is to mark gays and lesbians for second class status. In this way, the decision itself inflicts a kind of stigma harm on top of any harm caused by denials of service. The opinion of the court is quite literally a notice that reads, quote, some services may be denied to same sex couples.

When you read that and then you try to square that with Gorsuch saying, oh, but she will gladly create things for gay, lesbian, and bisexual clients, just not for a wedding, how do you square it?

COATES: It's nearly impossible to reconcile those two statements from the two different justices underlying the same premise, of course, here.

Remember, if you speak very plainly about what all this means is, what does it mean if I put a sign in front of my shop that says, open, open, open for business, open to the public, what does that really mean? Does it mean that, in fact, whatever services I'm providing are now available to everyone who is a member of the public, or does it mean it's open unless I want it to be closed to you?

Now, that's a very big distinction that Colorado was trying to look at and what the Supreme Court was grappling with. And they have come out with the conclusion that as long as it's creative or a freedom of expression issue, an artistic endeavor, for example, then perhaps it's about, well, I have a choice to decide when I am open and when I am closed.

Now, that does run counter to a lot of long standing precedent about this very notion. And to just delineate this further, we're talking about speech, and the majority goes to great length to talk about different aspects and Supreme Court case law that talks about so- called unpopular speech. They mentioned Skokie, Illinois, for example, and a march involving the Nazis. They talk about speech that is offensive, speech that is embraced in a variety of different contexts. And the history of the Supreme Court has been to say, look, it doesn't matter if you like or are offended by a particular speech. If you are open to the public for a parade route, if you are open for a permit process, if you have time, place and manner restrictions on the time a concert can be held, and when the music has to stop, then you cannot be closed to views you do not agree with.

Now, that has been the fundamental principle of the First Amendment for a very long time. What this does take an alternate view and perspective, which is why Sotomayor has been so vocal in her dissent that this essentially says open, accept. And that's a pretty novel concept, at least in the post civil rights era in this country.

What we see now, too, and one thing she spoke about was the idea of discrimination, perhaps as a six-headed hydra, when one aspect of the law is struck down to ensure some greater level of equity and equality, another is able to breathe its own fire.

And I actually asked the attorney in this matter about this case as to her correlation -- relation, excuse me, to the wedding cake at issue in that same state of Colorado, which is a very different litigation journey than this one. But she spoke about that correlation. Listen to what she had to say.

(BEGIN VIDEO CLIP)

COATES: And I believe you were the attorney for the Colorado baker as well in the past. Is that right? So, some would look at this and say, are you simply trying to use a client to -- not in unethical way, that's not what I mean, but an opportunity to re-litigate that particular case through this new medium?

WAGGONER: Absolutely not. In fact, Lorie's case was filed before Jack Phillip's Masterpiece Cake shop case even went to the Supreme Court. And now that she has seen the punishment that's been imposed on him, he's in his tenth year of litigation right now, Colorado is the most aggressive state in this nation to enforce their law and impose fines and reeducation against likeminded speakers like Lorie.

So, she has the right to go to court rather than to violate the law and allow the state to prosecute her. That's what our justice system provides.

(END VIDEO CLIP)

COATES: What's interesting about this conversation, in particular, given the two successive extraordinarily impactful cases for the Supreme Court, including affirmative action, and now this case related to free speech, has been the idea of similar lawyers.

You had Edward Blum, of course, for the affirmative action case, different acts of litigation trying to get to the Supreme Court, something similar here in the same vein of trying to understand the contours of a particular Supreme Court holding.

And so what we're also seeing here is a trend where people are looking and combing through very carefully through -- excuse me -- Supreme Court precedent to ensure.