The Dangerous Allure of Seemingly Inescapable Facts

Posted in: Civil Rights

When it comes to the Supreme Court, a case is rarely just a case. When the Court issues a decision, it is generally doing more than resolving a particular dispute. It has in mind the next case, and the one after that. The Court is engaged in a particular type of conversation with the public and litigants, speaking to them indirectly to discourage certain paths and open others. That’s why, when you read a decision, you have to ask not merely what it says but what it implies.

I thought of this when I read 303 Creative v. Elenis. Lorie Smith, who designs marriage websites, apparently doesn’t believe in gay marriage. She says it’s against her view of biblical truth. But Colorado law would have required her to provide a marriage website to a gay couple, if such a couple had asked. In Elenis, the six-member majority held that the Colorado law would be unconstitutional if it had compelled Smith to create artistic content in violation of her religious beliefs.

The posture of the case requires me to employ this odd manner of writing; simply as a matter of fact, no gay couple tried to hire Ms. Smith, Colorado law had never been invoked against her, and the controversy was entirely contrived. That’s the first clue that the Court was not really interested in deciding this case. It ha its judicial eye on what comes next.

The majority resolved Elenis by pretending its hands were tied. In the lower courts, the parties stipulated that Ms. Smith’s religious beliefs were sincerely held and that her marriage websites were expressive content within the meaning of the First Amendment. This being true, the question, at least for the majority, was whether the state could force a person to create art—that is, to speak—in violation of their sincerely held religious beliefs. The Court said no.

Beware of big rules announced in small cases. When I read Elenis, I thought of Terry v. Ohio. Like Elenis, the apparent facts in Terry seemed to compel the result. A Cleveland police officer watched as Terry and a compatriot engaged in what the Court later described as “elaborately casual” behavior. The two were standing on a street corner in downtown Cleveland. Terry left his compatriot, walked along the street, stopped in front of a store window, gazed intently into the store, walked a little further, then returned the same way, stopped again at the store window and again gazed inside, then continued back to the corner where he conferred with his compatriot, who did precisely as Terry had done: he walked down the street, stopped and looked into a particular store for a few seconds, continued walking a bit, then returned to gaze in the store again, then walked back to confer with Terry. Back and forth, back and forth, the two made about five or six trips each.

Though he had never seen these two before, and though they had committed no crime, the officer thought they were “casing” the store for a robbery and decided to investigate. He approached them, asked them their business, and when they mumbled something incomprehensible, he grabbed Terry, spun him around, patted him down, and found a concealed handgun. He arrested them both and found another handgun on his compatriot. The question for the Court was whether an officer could stop someone who had committed no crime but whose conduct raised an articulable suspicion that criminal activity may be afoot, and frisk them if the officer suspected a risk of harm. In an 8-1 decision by Chief Justice Earl Warren, the Court said yes, thus marking the first time the Court authorized a stop or frisk based on less than probable cause.

As the Court wrote the facts in Terry, the result seemed unavoidable. The actual facts may have been different from what the Court recited, but that’s another story. Given what the Court believed the facts to be, wouldn’t every responsible citizen want the police to investigate this peculiar behavior? And if so, what form should this investigation take? What else should an officer do besides inquire? And if an officer suspects a robbery, do we really think she should approach and inquire without also taking precautions for her safety and the safety of those around her? In short, isn’t this precisely the sort of proactive policing we should celebrate rather than denounce? The majority certainly thought so.

Terry is the constitutional foundation for stop and frisk. The Court in Terry tried to place guardrails around the decision. It insisted that a stop is a major intrusion into a person’s liberty and that a frisk must not be undertaken lightly. But these were empty words, and once Pandora’s box had been opened, it could not be shut again. The socially important question was not whether the officer should be allowed to approach and question Terry. The socially important question was whether Terry would become a license for abuse. It did. The Court quickly enlarged the conduct that justifies a stop and expanded the permissible scope of a frisk. Today, any “furtive glance,” whatever that means, authorizes an officer to order a civilian to stop and answer questions, and a frisk can involve intrusive and demeaning probing along every inch of a person’s clothing, all of which is done in public. Over the past five decades, no police tactic has generated more hostility between law enforcement and the communities they ostensibly serve than the overbroad use of stop and frisk.

Which brings us back to Elenis. Though the subject matter is entirely different, like Terry, the result in Elenis depended on seemingly inescapable facts: creating the website was expressive conduct within the meaning of the First Amendment, and Ms. Smith’s views were sincerely held religious beliefs. But the socially important question is not whether Ms. Smith should be hypothetically compelled to create art in violation of her religious beliefs for a couple that doesn’t exist. The socially important question is whether the subjective claim to a sincerely held religious belief justifies discriminatory commercial behavior. The Court seems to think it does, and like Terry, only time will tell how far they will take this view.

We will presumably now have pitched courtroom battles over whether a person’s belief is sincerely held as part of their religion, and whether the commercial transaction involves expressive conduct under the First Amendment. We can already see where some of this will go. The next Ms. Smith will say she cannot create a wedding website in support of a mixed-race couple because her interpretation of the Bible condemns miscegenation. Then, an architect will say she cannot design a home for a Jewish couple because her interpretation of the Bible says Jews are the devil. (Note that this language doesn’t actually have to be in the Bible; it just has to be a person’s sincerely held belief of what the Bible requires.) Litigation will push in both directions: on the limits of expressive conduct (are the cute designs created by baristas in the foam of a cappuccino a form of expressive conduct?) and on the types of discrimination supposedly “compelled” by religion (because her reading of the Bible says Islam is heretical and genocidal, she cannot be forced to design furniture for a Muslim).

Worse—much worse—we could return to the days of Jim Crow. Signs will hang in the front of craft stores: “I do not sell to LGBTQ customers.” Why? Because my work is art, and homosexuality (or gender fluidity or gender transition) is against my sincerely held religious beliefs. “No Mexicans welcome in this photo studio.” Why? Because my work is art, and ethnic mixing is against my religion. And if these signs are allowed, we can be confident that some of them will be considerably more offensive.

It is too early to tell whether the Court will allow the First Amendment to become the tool that resurrects commercial discrimination. But if it does, think of Terry and the dangerous allure of seemingly inescapable facts.

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