My least favorite law school class was Constitutional Law because, as I posited over a decade ago, "[a]ll that counts is what five out of nine middle-aged-to-elderly judges think." What is constitutional one day might not be the next, simply because a president swapped in a new judge. Similarly, what is constitutional one day might not be the next, simply because five of nine elderly judges want a different outcome.
For example, in 303 Creative LLC et al. v. Elensis et al., the Supreme Court held that a website designer does not have to design a website for a gay wedding when the designer believes that gay marriage is a sin and abetting the wedding would run counter to her Christian faith. Writing for the majority, Justice Gorsuch observed:
Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected trait. Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. 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,” so long as they would make films or murals for other members of the public with different messages. Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage.
I understand what he's saying with these hypotheticals. But does this also mean that a racist White person can refuse to make a website for an interracial wedding, effectively refusing to provide services to a Black person? Justice Gorsuch refers to "all manner of artists"--how far does that extend? Does the work of high-end chefs constitute art, and if so, can they refuse to provide their food to classes of people they don't like? In other words, could a racist chef refuse to serve their food to Latinos?
Justice Sotomayor points to all of this and more in her dissent. But the law of the land today appears to say, on First Amendment free speech grounds, that you can't force a business owner to provide "artistic" services to customers if the business owner does not agree with the content of the artistic work product. I don't know how to reconcile that with discrimination.
In another recent case, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Supreme Court held that public and private universities cannot consider race during the admissions process. The Court pointed to the Equal Protection Clause of the Fourteenth Amendment and said that this affirmative action process was discriminatory. Chief Justice Roberts's majority opinion interestingly says:
At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today.
That's weird. I never worked in a college admissions office, but I assume that no one other than the admissions staff reads the essays. No one knows what any particular essay says other than the applicant and whoever reads it. How can anyone police essay review? Does this mean that applicants can't address their race in their essay unless they discuss "discrimination, inspiration, or otherwise"? What does that mean? And most importantly, doesn't this limit what the applicant can say in their essay--doesn't this restrain the applicant's speech?
Maybe not. Perhaps the applicants can write whatever they want and it's up to the admissions staff to ignore inappropriate sentences. But does forcing the admissions office to ignore those sentences effectively curtail the applicant's free speech? What good is free speech if the audience isn't allowed to consider it?
More succinctly, I think Con Law is bullshit. Sometimes free speech trumps anti-discriminatory laws, while other times anti-discriminatory laws can limit free speech. When and how the rules apply depends on how nine old people in DC feel about the matter at hand and the outcome they desire. Mitch McConnell's gaming of the Supreme Court confirmation process got us these decisions. No matter what you may hear, the Supreme Court is a nakedly political body. And as much as I approve of naked bodies, we don't need any at 1 First Street.
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