Democracy Newsletter: August 2023
By Robert Katz
We’re all aware of slippery slope arguments: If A, which is not so bad, is allowed then B, which is terrible, will surely follow. While such arguments are sometimes valid, they should be used sparingly. Thrown around indiscriminately, these arguments can lead to paranoia and polarization, warning of dire consequences from the adoption of reasonable measures. If we have universal background checks, next thing they’ll be confiscating our guns.
Many people and groups reacted to the recent US Supreme Court decision in 303 Creative v. Elenis with a slippery slope framing. That was the case of the web designer refusing to do websites for gay weddings, with the court's conservative majority siding with the web designer. The ACLU had this to say after the decision came down: “The Supreme Court held today for the first time that a business offering customized expressive services has the right to violate state laws prohibiting such businesses from discrimination in sales. The Court’s decision opens the door to any business that claims to provide customized services to discriminate against historically marginalized groups.”
Does this case really “open the door” for the kind of wholesale discrimination that the ACLU statement conjures? Let’s take a closer look at the decision.
Briefly, the case arose when a Colorado web designer, Lorie Smith, decided she wanted to get into the wedding web design business, but did not want, because of her religious beliefs, to design websites for same-sex weddings. At the time the case was filed, she had not yet designed wedding websites, but courts allow preemptive lawsuits challenging a law when there is a real threat of prosecution for exercising First Amendment (speech) rights. Here, the state of Colorado, under its anti-discrimination laws, had taken legal action against a baker who refused to make custom wedding cakes for gay couples, and admitted it would go after Smith for her no-gay-weddings policy.
Because Colorado had yet to act against Smith, her lawsuit was tried on the basis of stipulated facts — i.e., facts that both parties to the lawsuit agreed were true. One of those facts was that Smith’s web designs would be “expressive in nature,” designed “to communicate a particular message.” Another fact was that Smith would not otherwise discriminate against gay customers: if a person who happened to be gay was opening a restaurant and wanted her to design the website, no problem.
And in fact, Smith and Colorado agreed about most of the operative legal principles. Colorado conceded that when Smith created a website, she could not be forced to say anything that was against her beliefs. More generally, both parties agreed that Colorado’s anti-discrimination law did not dictate what goods or services a business sold, but only who it sold to. An analogy raised in the briefs is of a store that sells greeting cards. Under Colorado’s anti-discrimination law, the store could not refuse to sell cards to gay people or Jews. But neither could it be forced to sell cards that celebrate gay weddings or bar mitzvahs.
So, under Colorado’s reading of the law, Smith was entitled to create only wedding websites that affirmed a traditional view of marriage. But she could not refuse to create such a website for a gay couple. In other words, if Smith offered to create a website celebrating the marriage of John and Craig, with a banner across every web page that said, “Marriage is the sacred union of a man and woman,” she wouldn’t be violating Colorado law. What gay couple in their right mind would want to avail themselves of such a website? Even under Colorado’s reading of its law, Smith would be able to effectively withdraw from the gay wedding website market.
Of course, you can worry that maybe the next case will expand the definition of “expressive activity” protected by the First Amendment. But the Supreme Court majority, in all fairness, did limit its decision to the situation in which a person is creating a work of expression in words, pictures and video, which is clearly protected by the First Amendment. There may be close cases where the dividing line between speech and conduct is not entirely clear. But if a plumber refused to serve a gay person claiming his plumbing is an act of creative expression, the likely judicial response would be solvuntur risu tabulae, which is Latin for “you gotta be kidding me” (actual translation: “the case is dismissed amidst laughter”). Others may try to claim that a refusal to serve gay people is protected expression as part of their freedom of association. But this kind of argument has been soundly rejected by the Supreme Court, which so far has upheld public accommodations laws such as the 1964 Civil Rights Act against free-association claims. It seems unlikely that even the current conservative court would want to disturb that particular hornets’ nest.
The law is often engaged in balancing competing values, both of which are important — such as in this case, free speech and anti-discrimination. The rule of law thrives on distinctions, sometimes very fine ones. This most recent case makes a modest concession to free speech over anti-discrimination policy, a concession that, given what the parties were arguing, doesn’t seem to be all that consequential. We have to remain vigilant that the next case doesn’t expand the scope of that concession in a way that more seriously undermines discrimination laws protecting gay people. But let’s not exaggerate the importance of a decision that doesn’t make a lot of practical difference by hoisting the slippery slope flag.
Robert Katz served as a staff attorney and supervising attorney at the California Supreme Court from 1993 to 2018. Before that, he was in private practice representing public agencies, and worked as a newspaper reporter covering local government in Santa Cruz County.
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Steve Zolno is the author of the book The Future of Democracy and several related titles. He graduated from Shimer College with a Bachelor’s Degree in Social Sciences and holds a Master’s in Educational Psychology from Sonoma State University. He is a Management and Educational Consultant in the San Francisco Bay Area and has been conducting seminars on democracy since 2006.