Welcome back. Let's bring in Alexander Boli, uh a law
professor at Emory University School of Law who was
clerked for two Supreme Court justices, Samuel Alito
and Sandra Day o'connor. Uh Welcome to the show. Um I
guess what is your opinion or your um, thoughts about
the ruling that we saw in the LGBT Q plus case Well,
the um opinion came out on pretty much expected grounds
Um The um opinion was written by Justice Gorsuch and
was 63 and there was a dissent from justice Sotomayo
with justices Kagan and Jackson So the line, the 63
lineup is exactly the lineup that you expect and that
we've seen in other cases. And basically what the
Supreme Court said is that Colorado cannot force
somebody to create messages that they disagree with. Uh
It's a matter of the first amendment, it's a matter
compelled speech. And so this is a very strong
vindication of free speech rights. This court. In fact,
the US Supreme Court for the last decades has been very
strong in the protection of free speech. We probably
have the strongest first amendment regime that we have
ever had in this country and stronger than in most
countries. And I think this, uh, lines up very nicely
with it. It's a very strong, full throated prot
of, uh, everyone's free speech rights, including when
you make wedding related websites that the state, no
matter how good and how honorable its purpose is just
can't force you to, um, it can't force you to endorse a
state approved message and look at first blush. I think
most Americans, if you say, hey, can the government
force you to say something I think most Americans would
go. No, I'm not comfortable wit that at all. So it's a
matter of walking that fine line between open
discrimination and how they draw that line. Because
then I wonder if the web, if the website designer or
the Baker doesn't like Asian people, trans people,
black people, women, men, whoev uh how do we, how do
we prevent it from going so far I mean, how do they
draw that line here Well, I think the Baker is a very
good example and you know, this came up in a previous
case of bakers wedding photographers and so on. Uh,
this, uh this uh sort of, this set of facts comes up
regularly. And I think what's very clear with bakers,
for example, is the, the government can force you to
sell to everyone. The government can say you cannot
refuse Asians, you cannot refuse gay people, you cannot
refuse blacks or women or men or whoever. So, selling a
cake off the shelf. Yeah, you have to serve everyone.
If the government wants to have that rule, it can. But
what it can't force you to do is write the message I
love Asians. Uh on the uh on the cake. If you don't
want to do that, it's legal in this country to be
racist. It's legal in this country to say racist things.
And that's one of the most important things of the
first amendment that we protect the speech. We hate
just as much as the speech we love. And if we didn't,
we would not have a free, we would not have free speech
in this country. So yeah, they can make you serve
different people. And in fact, this particular uh
wedding, this particular website designer was willing
to serve everyone just like the baker in the other case,
was willing to serve everyone. But if it's a matter of
creating expressive designs, speaking or writing or
photographing or creating expressive designs, anything
that counts as speech, the government, no matter how
honorable its anti discrimination intentions just
cannot force you to speak in favor of a state approved
message. It has to always leave you free to insist on
the message you agree with. So let me just practically
understand that because this is really fascinating. If
I'm the baker and I'm against gay marriage, I have to
sell you the cake, you Tom and Tim walk into my room in
the door. But if I tell you, but if they tell me, I
want you to write, you know, congrats on your wedding,
Tom and Tim on my cake, I can refuse to do that because
that's an expression which is different than the actual
sale of a physical item. Like a cake. Is that, is that
yes or no, a fair summation. That is precisely co
Ok. Got it. I didn't want Tom and Tim on the cake, then
it would be fine. Right. Right. So yeah, if they just,
if you just came in, if they just came in and they said
oh, we saw this cake in the window, we wanna buy it. Uh
And uh then color under Colorado law, the baker has to
say yes, just like it would say yes to anybody. The
baker can't say no, I won't sell you this generic cak
because I don't like gay marriages and you guys are gay.
So the, the, the baker does have to sell that cake
equally to everyone. But if it's a matter of writing a
message or designing a particular artistic design with
maybe two grooms on it instead of a groom and a bride
or whatever, there's a kind of personalized expression
Then the baker is entitled under the first amendment to
say no, you cannot force me to speak in ways that I
disagree with. And that's why the fact that this woman
is or says she is a website designer is important
important because that website is what constitutes the
free speech part of her argument, which is why we saw
the ruling that we did. Let me just ask you again,
there's legal theory in our country and then there's
how life plays out on the ground for those of us who
don't wear a black robe for a living. And number one,
if you're a gay couple, why would you want to go to a
place that does not support you Why would you just go
to the bakery down the street That would love to make
you a big gay wedding cake. And if you're a business,
you exist to make money and profit, why would you turn
down anyone's debit card or cash If you're looking to
make a business There's a practical part of all of this,
that for all the legal, those two issues is kind of
what it comes down to. If you don't want me here, I'll
take my money elsewhere. Yeah. Well, so Colorado is an
example where, uh, this, uh, that statute, uh, can be,
um, can be enforced by private individuals, but als
can, it can be enforced by a government, a special
government, anti discrimination agency. And that
Colorado government agency has been really statute
exactly the same agency as in the master. So they've
been very aggressive to abide by the statute even if
it's expressive. So it's not a matter of um, uh, it's
not a matter of, you know, gay people coming in. In
fact, in this case, she didn't have any customers yet.
She wanted to expand her business and she went to the
agency and said, would I be able to do this And the
agency said no. And that's why, that's why she sued.
It's because the agency is so aggressive, enforcing
this regime on everybody. Uh, and as for why would you
want to turn down someone's cash I think it's very easy.
America was built, not just on free enterprise, but on
the idea that people have a right to their religious
beliefs and people have the right to free speech. And
so I think we encourage, and we should encourage people
to live their values. Uh We should encourage people to
say, yeah, you know, sometimes there are things more
important than money. I mean, in this case, she's
religious. You know, I can't say I really have, I can't
say I really identify with those particular beliefs,
those are the beliefs she has. And, uh, you know, she
is entitled to say that free enterprise is great. I
love free enterprise. But for me, my beliefs are more
important than that and I will turn down money if it
means that I have to, uh I have to say something that
violates what to me is the truth. You know, I disagree
with her views, but I think that in general that
impulse is happening and yesterday there was another
case that was decided that related to freedom of
religion as well with the postal worker who didn't want
to work on Sundays. Is there any sort of bar or, uh, be
level of proof of how religious you are that, is, is
this really specific to religious beliefs or can you
just say, I don't, I don't like it. I'm not religiou
at all but I don't like it. Is there any, where, where
do, where is that kind of, um, barrier in both of these
cases Yeah, I think that's a really good, uh, really
good question. I think what's important to realize is
in today's case, the wedding website case, it came up
like the, the facts involve religion, but it's not a
religion case at all. I mean, I could just say, look,
I'm totally atheist. I just don't like gay people and I
don't want to put this message up. So there, this is
not actually not a case, it's a pure free speech case.
Uh, on the other hand, yesterday's case, um, it was
also, it was not a constitutional case. Uh, it was
under the anti discrimination laws and the anti
discrimination laws, uh, said that employers have to
give reasonable accommodations um, uh, for religion.
And so that means that if I have my employees and my
employees say, you know, I'm Christian and I won't work
on, on Sunday. I'm, um, uh, I'm Jewish and I won't work
on Saturday, I'm Muslim and I won't work on Friday or,
you know, you can have, there are all sorts of
different religious view, you know, uh, religions have
all sorts of a great variety of religious holidays.
won't work on this day or that day or something like
that. Um, if people have those kinds of religious
beliefs and they ask for accommodations, the law say
the statute says that employers have to give reasonab
accommodation. So that's not the constitution at all.
It's just Congress passed that law. And the question is,
um, you know, how, how much of an accommodation are yo
entitled to And uh, the, the law just says that uh the
employer has to give that accommodation unless it wo
be an undue burden on them. So it's a balancing of your,
of the religious employees interests and the employer's
interest. And if, for example, if it's something wher
you don't work on Sunday, but the employer has enough
people that he, that they can rearrange shifts, uh,
then, and it would be no problem for the employer. Th
means the employer has to give that accommodation and
that was a unanimous case yesterday. Right. All righ
Alexander Vale. Thank you so much for joining us here
today. We'll be right back with more on the Supreme