303 Creative Not Cooperating

During last week’s oral arguments in the 303 Creative v Elenis trial, Justice Sotomayor offered what would have been a truly bizarre and inexplicable hypothetical if it were not for the obvious historical overtones regarding racism and discrimination against African Americans. The Justice’s point was to ask the plaintiff’s counsel, Kristin Waggoner, if her client’s refusal to do wedding websites for same sex couples did not constitute a similar kind of discrimination against same sex couples today. In the Justice’s own words:

“[A photography] business wants to express its own view of nostalgia about Christmases past by reproducing classic 1940s and 1950s Santa scenes…. But precisely because they’re trying to capture … the feelings of a certain era, their policy is that only white children can be photographed with Santa in this way because that’s how they view the scenes with Santa…”

If the justice’s hypothetical were only about nostalgia for Christmases past and not also about past racism and discrimination, no one would object. Nostalgia generates a legitimate market in photographs, historical facts about a person’s birthday and birth year, and the like. But the Justice implies racism is the real reason behind this hypothetical business model and applies it to the business of 303 Creative. After all, children of color surely sat on Santa’s lap in the 40’s and 50’s, so the only reason left for the Justice’s hypothetical business decision is racism and discrimination.

The very human and American reality that people can honestly disagree about matters as important as sexuality and learn to live together is completely lost in the Justice’s hypothetical.

Let me offer a better framing of business transactions. A business transaction is series of cooperative actions between a buyer and a seller. By creating websites, the owner of 303 Creative, Lorie Smith, cooperates in the wedding project of her customers. But when a potential customer proposes a wedding involving actions with which she disagrees, in this case the exchange of vows of a same sex couple, she does not cooperate. She is not saying they are bad or second class people, only that she disagrees with something important that they are doing.

Viewing business transactions as acts of cooperation between a buyer and a seller better explains why Lorie Smith is willing to create other kinds of websites for gay people. For example, she would be quite willing for her customers to use her work to celebrate a birthday but not to communicate about establishing a relationship that she would not consider to be a marriage.

The Colorado Solicitor General Eric Olson argued that public accommodation law requires a business selling Jewish-themed goods to Muslims and Christians. This law would seem to work well unless a Muslim or Christian group buys those goods for an anti-Semitic use, at which point the Jewish business has a right and responsibility not to cooperate, that is not to sell its goods to those people.

Viewing business transactions as acts of cooperation brings to light how buyers and sellers can interact with each other except when they disagree. Disagreement need not mean conflict, but rather the need for each party at that moment to cooperate with a different business and different customers.

The disagreement on trial in 303 Creative v Elenis concerns some of the most fundamental human questions: the nature of marriage and of sexuality. The American political system attempts to preserve pluralism about these kinds of disagreement. But Justice Sotomayor’s hypothetical and the Solicitor General’s use of public accommodation law avoid that disagreement, accuse the plantiff of discrimination, and exacerbate the conflict.