[music]

Melissa Harris-Perry: Welcome to The Takeaway. I'm Melissa Harris-Perry and thanks for joining us.

Today's a big day in the state of Georgia as voters cast their ballots in the US Senate runoff between incumbent Senator Raphael Warnock and Challenger Herschel Walker. Now, it's notable for many reasons, but it's especially remarkable that no matter the outcome, the state of Georgia will be represented by an African American. This is Georgia. Okay, consider this. Herschel Walker was born in 1962.

That's two full years before Congress passed the Civil Rights Act of 1964, which forbade discrimination in public accommodations, but almost immediately after passage, an Atlanta lawyer and businessman challenged the law. Moreton Rolleston Jr. owned the swanky Heart of Atlanta Motel, and as a deeply committed segregationist, Rolleston argued that the 1964 Civil Rights Act violated his right to refuse service to Black patrons. Here's Rolleston representing himself in oral arguments before the court.

Moreton Rolleston Jr.: But if the Constitution and the 14th Amendment don't prohibit you, and Congress gets all of its power to enact any legislation from the Constitution. How then can Congress pass an act which will prohibit racial discrimination by an individual?

Melissa Harris-Perry: Rolleston even went on to claim that being forced to welcome Black guests was a violation of the 13th Amendment because it forced him into involuntary servitude.

Moreton Rolleston Jr.: There have been other cases which have held that if a person is forced to serve another in business wage, that if that involves involuntary servitude prohibited by the 13th Amendment.

Melissa Harris-Perry: Ultimately the Supreme Court ruled against Rolleston and upheld the Civil Rights Act, thereby establishing that private businesses are bound by federal anti-discrimination law. In 1964, a Georgia businessman characterized serving Black customers as a form of involuntary servitude, but today, Georgia voters choose between two Black candidates to represent them in the US Senate. It's easy to think of this as a moment of undeniable progress, but just hold on that part for a moment, because on Monday, the Supreme Court heard oral arguments in the case of a private business owner asking the court to allow discrimination.

Speaker 3: We'll hear argument first this morning in case 21476303, Creative LLC versus Elenis.

Melissa Harris-Perry: In this case, Lori Smith, a web designer and small business owner in Colorado does not want to design wedding websites for same-sex couples. Smith says that Colorado's anti-discrimination law would force her to involuntarily serve same-sex couples in a violation of her 1st Amendment right to free speech. It's a lot, y'all. Let's talk with Kenji Yoshino, the Chief Justice Earl Warren Professor of Constitutional Law at NYU School of Law and co-author of the upcoming book, Say the Right Thing: How to Talk About Identity, Diversity, and Justice. Kenji, it's always a pleasure to have you on The Takeaway.

Kenji Yoshino: Pleasure to be with you, Melissa.

Melissa Harris-Perry: All right, so Heart of Atlanta was about the Commerce Clause and about federal law. This case is about state law and free speech. How different does it make it?

Kenji Yoshino: The basic principles are the same because what you have is the state doing the right thing and saying you can't discriminate in your public accommodations, and then an individual who wants to be non-compliant with that saying that there's a constitutional right that they can assert against that.

Melissa Harris-Perry: Now, part of this is the notion not of a freedom of religion, although she's saying she doesn't want to serve same-sex couples as a result of her religious identity and understandings, but she's really relying on this notion of creativity constituting speech. Can you walk us through that a bit?

Kenji Yoshino: Oftentimes when people say, this is the 1st Amendment challenge to the public accommodations law, people's minds immediately go to religious objections, but this is actually a free speech objections. Specifically what she's saying is that there's a compelled affirmation being required of her, that the state is essentially putting words into her mouth, and that as an individual, she has a right not to have her speech compelled by the government.

Melissa Harris-Perry: Now, how much would that alter the meaning of speech?

Kenji Yoshino: That was something that really the justices were sparring over during the entire oral argument because this entire case turns on, is this really speech or is this a service? One of the things that both sides seem to agree on, even the plaintiffs in this case, was that if this were a restaurant that were holding its services open to the public, and it said we're not going to serve gay people, that would be impermissible.

What the website designer is saying is that the website is different from a restaurant offering food to all of its patrons because these websites are customized for same-sex and opposite-sex couples, and essentially in designing a wedding announcement or a wedding website for a same-sex couple, it forces her to speak against her conscience and forces her to say things that she does not believe.

Melissa Harris-Perry: Now, surely, Americans do in fact have a constitutionally protected right to hold discriminatory views. That seems accurate. Maybe we even have a constitutionally protected right to express our discriminatory views in private and in some public spaces, but is this the wrong question to be asking? Should we be asking about our individual right to discriminate or should we be asking about the right of the patrons to be served?

Kenji Yoshino: The easy case is where someone says, okay, I'm going to write a novel and I'm going to sell it. I'm in commerce and I can write that novel about whatever I want, so I can express racist views or I can express objections to same-sex marriage through that, but that seems very easily distinguishable from an instance in which something is much closer to an off-the-rack service. If I actually am the restaurant and I'm holding myself out to the public, then it doesn't seem like there's a lot of creativity going into the food itself.

What the debate, in this case, is over is how close is this to the novelist, this website design, and how close is this to the restaurateur who simply is serving food. On the plaintiff's side, the individuals who want to assert the 1st Amendment right. The claim is while all of these websites are heavily customized and it's never a plug-and-play product. Whereas Justice Sotomayer being the former trial judge goes into the record and says, actually, I've looked at the website and it is very generic. All you are saying is that you are quite willing to send out this wedding announcement for a straight couple, but you're not willing to do that to a gay couple.

Melissa Harris-Perry: Can you remind us how this is connected to the Masterpiece Cakeshop case?

Kenji Yoshino: Yes, in 2018 there was a baker who said, it's against my religious views to bake a cake, but in that case, the justice is essentially punted where they said, if you actually look at the application of this law, the Civil Rights Commission in Colorado expressed such animus against religion in their view, that that was in itself enough to take care of the case. Those specific facts are not present in this case, and so therefore we're actually dealing with the nub of the issue. The issue that the court punted on in 2018 has now come back to roost this term.

Melissa Harris-Perry: There was a wild moment about Black Santa that happened during the oral argument. Do you want to talk about that moment a bit?

Kenji Yoshino: Yes, I want to talk about how Justice Ketanji Brown Jackson is a genius because both sides were bollock stop on this issue of is this a service or is this speech? What she said is, "Well, wait a minute. Aren't there instances in which services and speech are so intertwined with each other that if we actually protect it, it would lead to really disastrous consequences for civil rights law? This is where she brought up her Santa hypothetical. Her hypothetical was, let's say you have a photographer and everyone agrees that the photographer is engaged in speech.

Certainly, the plaintiff believes that the photographer is engaged in speech and she says the photographer wants to photo Allah, It's A Wonderful Life. This is like a scene of yesteryear, in order to be authentic to It's A Wonderful Life, the photographer wants only white children to be photographed, and so would that be permissible even though antidiscrimination law, public accommodation law obviously says you can't have white kids only at the mall when individuals are being photographed with Santa.

What Justice Jackson was saying to the plaintiff was to say, "Look, if you want a religious accommodation, how broadly does this sweep? Where is the line?" The plaintiff's attorney, Kristen Waggoner said, "Oh, that's an edge case." Meaning that's a close call, and then he had incredulity from Justice Kagan saying, "Are you kidding me? You're saying that's an edge case? Meaning, it could be decided either way?" Then the lawyer for the plaintiff quickly realized their mistake and pivoted and said, "It's not that hard of a case because a message isn't embedded in the final product in the way that rejection of same-sex couples and same-sex weddings is embedded in the website," and she got away with that because other justices stepped in and the argument moved on but that's really no distinction at all as Justice Jackson was emphasizing at the end of the argument saying, "Wait a minute. There is a message embedded. If I take a photograph saying scenes from Santa from yesteryear It's A Wonderful Life, that's my message."

In a sense, you have no distinction. I think at the end of the day, the lawyer for the plaintiffs just did not have a distinction where she could say, "Wait a minute, I can distinguish this marriage website from a bar on Santa's that says only white children can sit on Santa's lap," which she just didn't want to say obviously, but there was no principled ground on which she could reject that that was even remotely plausible.

Justice Alito steps in and says, "Wait a minute. If there is a Black Santa right at the other end of the mall and the Black Santa doesn't want to be photographed with a child who's dressed up as a member of the KKK, then is this something that the Black Santa would have to do?" The Colorado attorney who is fielding that question to defend a public accommodation statute gave it the back of his hand, I think, quite rightly, saying the KKK is not a protected group under Colorado law, or as far as I know, under any law.

This is a strange hypothetical. Of course, the Black Santa would be able to reject the KKK costume child. Then in order to land the plane on that point, Justice Kagan says that would of course be true whatever the race of the KKK, where cloak or hood-wearing child was. Then Justice Alito stepped in a very awkward moment in the oral argument to say.

Justice Alito: You do see a lot of Black children in Ku Klux Klan outfits all the time.

Kenji Yoshino: You got a laugh from the court. I was really just horrified by that. I'm really horrified that we go so quickly to Black individuals and KKK costumes and also that it's somehow a laugh line that Black children would be dressing up in KKK costumes. It reminds me of Justice Ginsburg saying when she gets up to make a oral argument in the [unintelligible 00:12:51] versus Missouri case for sex discrimination, Justice Rehnquist says, "Mrs. Ginsburg, you won't be satisfied with Susan B Anthony's face on the new dollar."

She said in reflecting on that moment, racial jokes that was well understood were off limits but women remained fair game. It seems like we're back in the territory where it's somehow funny to think about Black children wearing KKK costumes.

Melissa Harris-Perry: Everything about what happened in that segment of the oral argument struck me as absolutely jaw-dropping. To not leave us there, though, Kenji, is there anything in how the justices were talking about queer folk, about same-sex marriage, that either resonated in that way or maybe suggested that things are moving in a different direction?

Kenji Yoshino: I'm so glad that you asked that question, Melissa, because I was struck by two things in the oral argument. One of the things they say about Supreme Court litigation is that you have to be able to count to five. Based on the oral arguments alone, I don't actually think this is looking good for the civil rights law in question. I think there will be a 1st Amendment carve out because I can count to five conservative justices on this very aggressive maximalist six-three conservative court for the position that there should be the three speech carve outs from civil rights law.

On the one hand, I emerged from the oral argument quite dispirited but on the other hand, I was really struck by the contrast of I'm old enough to have listened to the oral arguments when I was in law school of the Bowers versus Hardwick case in 1986, where, Laurence Tribe did a heroic job of arguing for the right to same-sex sexual intimacy and the right of same-sex individuals or couples to engage in sexual conduct. He de-gayed that case because everybody knew that he would have to make a gay element as sub rosa as possible. He kept talking about the right to privacy. I think the word homosexual only comes up once in the entire, oral argument.

Everyone's avoiding and playing keep away from LGBT issues because they know that that will torpedo the case. It ultimately did. Tribe for all his heroic efforts was not able to save that case from being rejected. There was no right to privacy. The court said to engage in same-sex sexual intimacy. This is a case that Laura [unintelligible 00:15:23]  overruled in 2003, but now in 2022, one of the things that was a cause of optimism for me in listening to these oral arguments as somebody who's been deeply involved in LGBT rights issues was how casually people were throwing around references to the LGBT community.

The lawyer who was challenging the civil rights statute said the civil rights statute should be limited by the 1st Amendment because those 1st Amendment speech protections would also protect the lesbian web developer from engaging in speech that she didn't want to engage in. Many of the conservative justices were still talking about and giving hypotheticals about LGBT individuals. People were routinely giving hypotheticals about, let's say you have like Mark and Henry as opposed to Mark and Mary, all that's different here is the sex of the individual. Isn't this discriminatory?

On the one hand, you have a country that has traveled such a long way. We just had the respect for marriage Act be passed right through the house of the Congress, you have a 71% approval of same-sex marriages. I think what we're really left with is this notion of it's going to be a split-the-difference situation where I don't think that the first move here is going to be to go after same-sex marriage and say Obergefell should be overruled.

I'm not saying that's not going to happen but I'm saying that the first move here is going to be let's acknowledge the revolution that's occurred in LGBT rights since that Bowers' case. Instead of doing a full frontal attack on same-sex marriage, let's just chip away at it. Let's use the 1st Amendment of free speech clauses in order to chip away and chip away at the protections that this will give but of course, that chipping away has consequences for every other civil rights group.

I just want to leave your listeners with the idea that the solicitor general's office, which was arguing for the federal government in this case left us with, which is to say when asked by Justice Kagan what's the parade of horribles here? What's the worst-case scenario? He said, "I'm haunted by [unintelligible 00:17:37] where a private school said we want to discriminate and not allow people of color to come into the school. We want this to be a white-only school."

He said, obviously, that would be illegal and that was deemed to be illegal but if we were to revisit that case right today on this theory, if the court accepts it of the 1st Amendment, then these teachers could say we're trying to convey a message. The administrators just could say, "We're trying to convey a message. We're an educational institution. This is artistry. This is speech and you're compelling our speech." It's not just the situation of the Black Santa, it's also fundamental institutions, like our educational institutions, that could also be victim to this chipping away phenomenon.

Melissa Harris-Perry: Kenji Yoshino is the Chief Justice Earl Warren, Professor of Constitutional Law at NYU School of Law, and he's co-author of the upcoming book, Say the Right Thing: How to Talk About Identity, Diversity, and Justice. Kenji, as always, thank you for joining us.

Kenji Yoshino: As always, Melissa. Such a pleasure.

[music]

Copyright © 2022 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.