McKenna: Supreme Court wedding website ruling more complex, nuanced than it appears
Jul 6, 2023, 2:53 PM | Updated: 3:01 pm
(AP Photo/Charlie Riedel, File)
On the heels of the U.S. Supreme Court’s ruling last week in favor of a Colorado graphic artist who said it would, details are emerging that puts the basis of the case in question.
Multiple news outlets, including The Associated Press and CBS News, reported a man whose name and contact information appeared in case documents with an alleged request to use the designer’s services for a same-sex wedding is denying ever contacting the company.
The man, who is identified by his first name “Stewart” in court filings, told the outlets he “did not send any requests” to 303 Creative, the web design business Lorie Smith founded roughly a decade ago. The New Republic first reported on his claim, and he told the magazine he was already married to his wife when the purported request was submitted.
Despite what appears to be hypothetical in the case, former Washington Attorney General Rob McKenna said the ruling is more complex and nuanced than it appears.
“The request turned out really not to be legitimate, although it did include a real email address or real phone number from a real person; the person the email address and phone number belong to was a heterosexual male who’s married to a woman and doesn’t seem to know how his name got used for this request,” McKenna said on Seattle’s Morning News. “And so, the Attorney General of Colorado argued that this is not a real case, that this is just a hypothetical claim that the plaintiff was making, but the Supreme Court didn’t really pay much attention to that argument.”
Local officials and leaders speak out: Supreme Court backs designer against same-sex marriage
“The plaintiffs were very careful here and stipulating that the business owner would be happy to create websites for people of all races, people who are straight gay, and otherwise, she just didn’t want to be required to create websites for marriages that run contrary to her view of what inappropriate marriages,” McKenna explained. “So it is a case that’s really based on a hypothetical in the sense that she wasn’t accused or refusing to serve a same-sex couple; she basically was saying, ‘Look, I know that if I get into this business, and I start offering wedding websites, that someone’s going to ask me to create a website for a same-sex couple, I’ll have to refuse, and then the state of Colorado will come after me.'”
Laws protecting LGBTQ+ people from discrimination stay in place
McKenna said the laws protecting LGBTQ+ people from discrimination remain in place. “What’s happened here is that we’ve run up into one of those tensions between one constitutional right, the right to be free from discrimination, and another constitutional right, which is to be able to both express your speech and not be forced to express speech you disagree with.”
McKenna said he doesn’t think this decision undercuts the Washington Supreme Court’s ruling that the florist in the Tri-Cities must provide floral arrangements for same-sex unions because that’s not expressive conduct in the way that creating a website is.
“What happens if somebody who rents out a theater and they’re happy to rent that theater to anybody regardless of their sexual orientation, but they will not allow a drag shall go on?,” KIRO Newsradio’s Dave Ross asked McKenna.
“I think that that runs up against the rules against discrimination that would be ruled as discrimination in the provision of public accommodations,” McKenna said. “So, it’s not expressive conduct to decide who you’re going to rent your facility to and who you’re not any more than it would be that if a hotel owner said, ‘Well, I’m not going to rent the honeymoon suite with a heart-shaped bed and a hot tub to a same-sex couple that just got married.’ That would clearly violate the law and I don’t think the Supreme Court would find otherwise. It has to be expression. It can’t be the provision of some sort of business service or a public accommodation.”
Listen to Seattle’s Morning News with Dave Ross and Colleen O’Brien weekday mornings from 5-9 a.m. on KIRO Newsradio, 97.3 FM. Subscribe to the podcast here.