303 Creative - Justices Largely Ignore Crucial Distinction and Obvious Hypotheticals

WASHINGTON - Dec. 5, 2022 - PRLog -- During the Supreme Court's argument in the 303 Creative case, in which Colorado argued that a website designer's refusal to prepare one for a same-sex wedding constitutes illegal discrimination, the Court largely ignored or overlooked a crucial distinction, suggests public interest law professor John Banzhaf ,who has won more than 100 cases involving illegal discrimination based upon race, sex, religion, and disability.

It was also strange that both attorneys seeking to defend Colorado's actions tried to rely upon a Supreme Court case which turned out to be an utter rout for the many law schools who brought it; something Prof Banzhaf pointed out in Media Very Critical of Law Schools and Law Profs Who Bungled the Solomon-Amendment Military-Access-to-Campus Case (http://banzhaf.net/by/fairrebuke.html)

More importantly, Banzhaf suggests that the arguments largely ignored a crucial distinction between:
Refusing to provide a product or service based upon protected characteristics of the customer (e.g. the customer's race, sex, religion, sexual orientation, etc.) VS
Refusing to provide a product or service based not upon a protected characteristic of a customer, but rather upon the speech/message conveyed (e.g., for or against same-sex marriage, abortion, atheism, etc.)

In other words, so long as a website designer would decline to provide a website with certain messages for all customers of all sexual orientations (e.g., the straight parents of the groom), there would be no legal liability; but if the refusal were based upon the sexual orientation of the customer ordering the website, it would be illegal.

Since some same-sex marriages involve two heterosexuals who marry for various reasons other than love or sexual attraction - e.g., for tax and/or inheritance advantages in certain circumstances, two elderly straight widows living together, etc.) - refusing to design a website for a same-sex wedding would not necessarily involve discrimination based upon sexual orientation because it could impact both gay and straight prospective clients.

The customer-status vs. message distinction is, in fact, the position of almost half of the states, all of whom have similar statutes prohibiting discrimination.  As they told the Supreme Court in their brief amicus curiae (https://www.supremecourt.gov/DocketPDF/21/21-476/227004/2...):

"This distinction is based on a message Smith cannot convey and not on the status of any customer. Pet.App.6a ("Appellants' objection is based on the message of the specific website; Appellants will not create a website celebrating same-sex marriage regardless of whether the customer is the same-sex couple themselves, a heterosexual friend of the couple, or even a disinterested wedding planner requesting a mock-up.").

http://banzhaf.net/  jbanzhaf3ATgmail.com  @profbanzhaf