A Bad Week for Donald Trump? … And Potentially for Gay Marriage? 57:47

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Hi, everyone. From New York Magazine and the Vox Media Podcast Network, you're listening to The Supremes with 100% Les Diana Ross. Just kidding. This is On with Kara Swisher, and I'm Kara Swisher. And I'm Naima Rossa. Can you imagine us as a Motown group? That would be very bad. No, I can't sing.

Our guest today is Sam Bankman-Fried. No, no. Just kidding. He's been everywhere. I have asked him for an interview and he's been everywhere, but he will not come on with me. Why do you think that is? Because you're not going to be so friendly for him. I'm not going to hug his little teddy bear act. I just find the interviews with him a little infuriating. I do too. I do too. He's like, I don't know. I just didn't have time.

time. I didn't want to hang out with celebrities, but I just was hanging out with celebrities. How did that billion dollars get lost? It was in the drawer when I last looked for it, when I was looking for my uppers and downers. Oh my God, the whole thing is just ridiculous. Sam Bankman-Fried, I put a challenge to you. You're literally talking to the local Arkansas paper. You can talk to me. Is that what you're calling Andrew Osorkin, the local Arkansas paper? No, no, no, but he's talking to everybody. He's everywhere. I know he is. He's talking...

To the Wall Street Journal, to the New York Times, and also to the local paper. He should come here. He should come. Like, if you're going to talk to the Bahamas Daily, you're talking to me. But he won't, because I'm not going to put up with this unmade bad business. And when we have him here, you can say the Cuba Gooding Jr. line. Show me the money. He knows. Show me the money. I don't know. It's billions.

Anyways, our guest today is not Sam Bankman-Fried, but it is a panel of lawyers and journalists. Yeah, we have a panel of lawyers and journalists discuss the Supreme Court hearings on Monday and the case about gay marriage has gotten a lot of attention. And of course, I'm staying tuned in because the court has been so reshaped under Trump with the new justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. And of course, I've been through this rigor mole so many times, and this is yet another one in the attempts to

to roll back some of the gains that LGBTQ people have made over the past several decades. Yeah. How much do you think this new court under Trump is going to reshape it, reshape this decision in this case? I don't know. I think they're going to try to do a lot of narrow little ones. They love to chip away things. That's what they did with abortion rights and then ultimately overturned it. So that's what they're going to try to do. They're going to try to chip away using all kinds of all means of

Speaking of chipping away, it's been a bad week for Donald Trump. There's been some chipping away at his power. Herschel Walker, the candidate he backed in the Georgia Senate election, lost this week to Raphael Warnock, who we've interviewed before. Trump's organization was also found guilty of schemes to avoid paying taxes by a New York jury last week. Yeah, but it's like a tiny fine and it's not going to hurt him. But it seems like he's losing some. Look, evangelicals are slower to back him this time than they were in 2016. But people seem to think that he has a...

patina of shame. Shocking. Well, I think he's just lost his mind. I mean, he got much deserved heat from posting on True Social over the weekend about supposed flaws in the Constitution, the great constitutional scholar that he is. He said a massive fraud of this type in magnitude allows for the, quote, termination of all rules, regulations, and articles, even those found in the Constitution. He's literally trying not to be elected. That's what he's trying to do. And then be the giant victim. He's the biggest baby victim of

bigger than Sam Bankman Freed. He did walk back that post saying he didn't want to terminate the Constitution. Thank you, Donald Trump. But he didn't delete the first post. And this big lie of his continues and continues. But why? Why? The whole question is why? That's all. Why is he doing it? Why do you think? I don't know.

I don't know, because he has like, he's a quick fingered person, and he has to type these things. And then he's got some sad little aid there that has to do it. And he's thinking, I really don't want to do this. Yeah, it's all by impulse. I don't think there's a good rationale to it. But there is one area where Trump or his legal advisors may have a win upcoming, despite

Yeah, not generally in the weeds of election law, but this case is important because it tells us a lot about the election.

that test this kind of federalist fever dream that the Constitution gives states and state legislatures unchecked authority over how federal elections are run. And this is the electoral clause which says something like, the times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof, which is what Donald Trump's legal advisors would have him believe that it should be completely up to the state legislatures and nobody else, unchecked. Trump supporters tried to get this case out

Or this theory argued before the Supreme Court in 2020, they declined to hear the case. It'll be interesting if the Congress acts to change some things, but they have a very short amount of time in their lame duck session to do anything. Yeah, both sides are saying this is revolutionary, which means it's probably revolutionary. It would be a massive victory for advisers of Donald Trump if the Supreme Court decides to back the North Carolina Republicans, because if so, we'd see the end of...

kind of amendments banning gerrymandering in states like Florida and Ohio. We'd probably see the end of independent redistricting commissions in states like Arizona and Michigan. All of these were instituted by voters and ballot initiatives rather than being passed into laws by the state legislatures. And the empowering of state legislatures could potentially set up Donald Trump for a victory in 2024, especially if legislators could appoint electors they wanted, even if those electors didn't fit the people's will, like if they had this completely unchecked power. Right.

Well, we'll see about that. You've got to have people like you and want to vote for you at the same time. You think people are just over Donald Trump? Yes, they do. Yes, they do. I think Republicans are over Donald Trump, and they're trying to find ways to move along without saying that explicitly. Yeah, well, they've always been over him, but they found him expedient. They're losing. They don't care about anything else. They're losing, and that's really the situation because of bad candidates like Herschel Walker. What will it take? Because even the constitutional quote, like Kevin McCarthy wouldn't decry it. I think others wouldn't decry it. You know what?

You know, these people. There needs to be a new party. It's happened before. Yeah, the Whigs. Don't say, yeah, the Whigs. Nobody remembers what they were and why they had such a stupid name. But it happens. So we'll see what's going to happen. Or not. But we're not legal experts. But let's bring some in. Yeah. We're going to talk about another important case with the Supreme Court today. I want to talk about one that really matters to me, obviously, which is gay rights and free speech case. And that was heard before the Supreme Court on Monday, 303 Creative LLC versus Ellenis.

centered on a website designer who did not want to provide wedding services to same-sex couples. It's complex because she's never been sanctioned by the state of Colorado, but it's a hypothetical case. She doesn't want to be, and she wants to prevent it from happening. So it's a really interesting case, and it sort of is juxtaposed to one in 2018 on the Masterpiece case. That was the baker who didn't want to make the cake for the gay couple, and...

The court in that case sided with the baker in a very narrow victory, saying that the state of Colorado hadn't shown neutrality to the baker's religious beliefs and was compelling him and public accommodations to provide these services. This case, like that one,

is around three things. It's about protection and discrimination and gay rights. So marriage is a protected trait in American law since the Obergefell decision, obviously, in 2015, regardless of sex. But it's also about free speech and expression. Like, can I, as a website designer, like, can I choose not to serve people based on this? And then it's also about the state's rights in compelling individuals to

behave, act, say, you know, certain things. Yeah. Are you worried about this case, Carrie? Are you worried? I'm worried about every one of them. I'm worried about it. But the Senate recently passed the Respect for Marriage Act, which codifies same-sex marriage. It's headed to the House. It'll pass the House and Biden will sign it. But you're still worried. I'm always worried. They're always, listen, they never get tired. Yeah. They never give up. And guess what? Neither do we.

And so I want to talk to a few people. Two are legal scholars. Louise Melling is the deputy director at the ACLU and the director of its Ruth Bader Ginsburg Center for Liberty. Dale Carpenter is the Judge William Hawley Atwell Chair of Constitutional Law and Professor of Law at Southern Methodist University. He was also president of the Texas chapter of the Log Cabin Republicans in the 1990s. Explain what the Log Cabin Republicans are. Oh, Log Cabin Republicans are conservative gay Republicans, I guess. I don't know what else to put them. I never go to their parties.

Anyway, and Sasha Eisenberg is the Washington correspondent for The Monocle and author of the engagement about the battle for same-sex marriage in America. What are you hoping to learn from them? They all have different points of view, and I want to bring different points of view because that's what we should be doing here in understanding what's at stake. And so I want people to understand the...

what the arguments are. And the justices certainly seemed to have a very good time discussing it. It was really interesting to them. It was like a party in the audio of that meeting. They were discussing all the hypotheticals. Justice Alito brought up J-Date, and they were talking about Santas and who could take photos. These kind of hypothetical cases are really interesting and

Because it's really about the slippery slope. What does a law mean in its extreme? What would you like to learn? I want to hear from Dale. I'm really interested in Dale Carpenter because in the Masterpiece Baking case, he was backing the gay couple. He filed an amicus brief. So he thought that the baker should have been compelled to

bake the cake. But now in this case, he seems to be supportive of the website designer's argument or more open to it, which is, I think, nuanced. So I'm curious why he's changed his perspective or what's different. I mean, for gay people, this has gotten a little tiresome on some level is winning all these rights and then having them constantly grabbed back from you is really real. And it's the same thing with abortion and everything else. But on some level, when that case happened,

I thought, I don't want your shitty cake anyway. Gay people don't want your shitty cake, and we don't want your shitty websites, lady. But you can't. You have to try these things and protect rights for people all across the country. And it's not just rights for gay people. It's for everybody. But you've always been backer of this. Like, I remember when we were talking about Elon Musk and Starlink, and you're like, it's his company. He can do what he wants. You've been a very private sector, you know. Yeah. But on this? I want to hear from them. Let's hear from them. Okay. Okay.

Let's take a quick break. And when we're back, we'll have Kara's next gay wedding. No, no, thank you. No more kids, no more weddings.

On September 28th, the Global Citizen Festival will gather thousands of people who took action to end extreme poverty. Watch Post Malone, Doja Cat, Lisa, Jelly Roll, and Raul Alejandro as they take the stage with world leaders and activists to defeat poverty, defend the planet, and demand equity. Download the Global Citizen app to watch live. Learn more at globalcitizen.org.

We're going to obviously be talking about this incredibly fascinating case. And I want to quickly ask each of you what you see as the stakes in this case. Louise, let's start with you.

The stakes in the case are incredibly high. What's really at stake are our nation's civil rights laws. We heard that from Justice Sotomayor when she clearly asked counsel for the business in this case. If we rule in your favor, won't this be the first time that we've created an exception to our civil rights laws? And the exception here that is being requested is not in any way narrow. Okay. Dale?

I see the stakes as also fairly high, although actually probably the inverse of what Louise suggested. I see it as potentially the first time we will ever have declared there is an exception to the freedom of speech and expression for public accommodations or anti-discrimination laws. And I think that freedom of speech has been incredibly important to the cause of LGBT rights. So I'd like to continue to see it robustly protected.

Sasha? I think we're going to start to see what the sort of limits of the court's mandate that the fundamental right to marriage can extend to same-sex couples that came down in 2015 is.

And whether there are going to be differences between what it means to be publicly recognized as married because the government accepts your marriage on equal terms and what the expectations are around private actors having to accept or recognize that union on equal terms. Okay. Dale, walk us through the case. Who is Lori Smith and how did she find herself at the Supreme Court?

Yeah, so Lori Smith is a website designer who sells her website design services. She would like to extend her business to include wedding websites that she sells to couples who want to marry. She's afraid if she does that because of her beliefs that marriage is only the union of a man and a woman, and she doesn't want to sell them to same-sex couples, that she may be investigated by the state of Colorado.

So she actually filed what's known as a pre-enforcement action before there was any offering of any websites to any couples to just have it declared that she has the right to make that decision and make those creative choices. She lost in the lower courts in Colorado, in two lower courts, including the appeals court, and now she's gotten her case before the Supreme Court. And I would say the case presents the basic question of,

of whether public accommodations laws can be extended to compel an expressive service to provide services that are themselves expressive. Expressive meaning free speech. Yes, freedom of speech. Freedom of speech. And she wants to post a message on her site saying so, and she's nervous, but nothing has actually happened. Well, there's no actual couple that's sued because nobody's been refused service because she hasn't offered the services yet. And is that unusual? Explain. That is unusual, correct?

It is somewhat unusual. There are cases that the courts have accepted in these pre-enforcement actions when there is a credible threat of enforcement. And I think in this case, she's arguing that there is a credible threat of enforcement. And in those cases, you are allowed to sue before you've actually been subject to investigation. And presumably she wants to make a point, correct, due to her religious beliefs.

Well, yeah. I mean, she wants to create websites celebrating marriages that she believes in and not marriages that she doesn't believe in. Okay. And she's using free speech essentially as the argument. Well, she actually argued both free speech and free exercise of religion, but the

The way the court has taken the case at this point is just to consider the issue of free speech. So the fact that she objects on religious crowns is really incidental to the free speech question. So it's not really a religion case. It's a speech case.

Louise, talk about the argument Colorado is making to say it isn't speech. And if it's not speech, what is it? So what's at issue here is the law that's called the public accommodations law. It's a law that prohibits discrimination in places that open up their business to the public.

And what that law says is we don't care what product you create. You can create any product you want. But once you create that product, you can't discriminate when you sell that product if you're open to the public. What Laurie Smith has created or is proposing to create is a product of selling websites, websites for people who want to get married. And it involves words. It's expressive. But many things, lots of conduct is expressive.

The ACLU, as you know, defends speech, and we say this is not an infringement on speech. This is about regulating conduct that has... It has an incidental effect on expression. Yes, absolutely, but so do laws that regulate...

for example. They limit whether or not you can step on the courthouse steps within a certain limit, and that's true even if you're protesting. She's not limited to words in what she's arguing. The argument is not limited to religion, and there's nothing in the argument that limits this to marriage or to LGBT people. This is about creating an exception.

Right.

And also, what are the limits on how far it goes? And you watched the lawyer in a very uncomfortable position, I would say, trying to figure out how to handle a whole bunch of the hypotheticals, including in particular. So what happens if a photography studio doesn't want to take photographs that involve black people? Or you can imagine the photography studio that doesn't want to take pictures of interracial couples.

or doesn't want to take pictures of women executives because they don't believe that women should be in these places. And there is no, to my mind, no principled way of distinguishing many of those hypotheticals from what's at issue here. Sasha, explain the other case, Masterpiece Kate Shop. So I think the religious liberty, religious freedom dynamic had been the sort of the primary vector for...

all of these challenges after the court ruled in Obergefell in 2015 that... Explain what that is for people who don't know. So in 2015, the Supreme Court struck down remaining bans on same-sex marriage, state-level bans, and determined basically that the fundamental right to marriage in the U.S. Constitution extended to same-sex couples. And it meant that...

basically immediately, same-sex couples nationwide could marry. And what we saw at that point, even beforehand, was that the folks who were on the losing side of that argument, the ones who had been fighting marriage equality, started to look for

or protections from having to recognize same-sex couples. I mean, the immediate... Very similar would happen to abortion, for example. Yeah, I mean, right away... First, we saw government officials, and folks may remember over the summer of 2015, there was a county clerk in Kentucky named Kim Davis who said that

I believe she was Pentecostal. She said it would violate her biblical beliefs to do her job and issue marriage licenses. She was briefly jailed there. Eventually, we sort of moved beyond most of the government officials saying that they would not issue or recognize marriages. But now we're seeing private actors saying,

sort of ask courts to weigh in on this, on what happens if you have a conflict between non-discrimination laws, equal protection laws, and their individual religious beliefs. The difference, as Professor Carpenter says, is that this is playing out as a question about compelling free speech, not about the exercise of an individual

or accompanies religion. Because the religious exemptions were getting problematic. It was problematic. So this is a way to get into it, in other words. This is a new wrinkle. I think it's a new way of looking to be protected from having to recognize these marriages, yeah.

Okay, so oral arguments in this case went long. And as Louise said, there were a lot of hypotheticals thrown out by the justices. Here's Justice Alito, and he's talking about J-Date and Ashley Madison. An unmarried Jewish person asks a Jewish photographer to take a photograph for his J-Date dating profile.

Is it a dating service, I gather, for Jewish people? It is. All right. Maybe Justice Kagan will also be familiar with the next website I'm going to mention. So next, a Jewish person asks a Jewish photographer to take a photograph for his AshleyMadison.com dating profile. I'm not suggesting that. I mean, she knows a lot of things. I'm not suggesting that.

Okay, does he have to do it? There was another hypothetical about whether Black Santa in a mall would be compelled to take a photo with a kid in a KKK outfit. Some have speculated the justices were looking for limits in the case. Dale, what do you think was going on? Well, so there were a lot of hypotheticals floating around on both sides. There was one hypothetical that I thought went to the heart of the matter, at least as I saw it.

And that was Justice Kagan's hypothetical, which was asked, I believe, of both sides, when she said if a website designer placed a message on all of the wedding websites that said, God blesses this union, and said, I'm going to do same-sex weddings and provide the details and the announcement and so forth, but I'm not going to provide that message for the same-sex websites, but I will provide them to the

opposite sex websites, would the public accommodations law apply to that? And would she be forced to send that message and fix that message to the same sex websites? And I think that really kind of got to the heart of

the issue. It's not that Laurie Smith won't serve gay people. It's that she doesn't want to send a message of celebration of same-sex marriages. And that, to me, kind of captured the essence of the problem. And as I saw it, Justice Kagan was really troubled by that example. And I'm not sure that there was an adequate

answer to that from the government's side. Either the state or the federal government's lawyer, who otherwise did a great job on it, the federal government's lawyer especially, was an expert lawyer. Louise, was that compelling to you when Kagan was asking that idea? Well, it is compelling, but I want to step back for a second again to say that

In Masterpiece Cake Shop, Jack Phillips objected to providing a cake to David Mullins and Charlie Craig because he didn't want to send a message that he supports marriage between same-sex couples. In Texas, there's a case of businesses arguing that they shouldn't have to cover PrEP medicine to prevent HIV infections because if they cover that, they would be sending a message and encouraging, in their words, certain kinds of behaviors that they object to.

Lots of conduct is expressive. And what we've said in our civil rights laws and what we've said, what the court has said to date whenever confronted, when it ever decided this question squarely, was that our interest in ending discrimination overrides these other interests, even if you accept that this was speech and that there was a burden on speech, which we would say this is all regulation of conduct. Right.

So it can sound narrow, but this is a very, very broad argument with implications in lots of spheres and for lots of us who have long awaited our opportunity to participate as equal citizens. So there's exception upon exception upon exception. But Sasha, can you talk about, because it's mostly been well-received by the public, there's heavy public acceptance of this. It was a long struggle having been in the middle of it myself. I got kept

getting married and unmarried quite a lot in the early years. I was in San Francisco, and I had my fee returned. I'm not sure that's divorce, but it was something, which was so weird to have my fee returned, with an apology from San Francisco. And let me just say, from a personal aside, when Proposition 8 did pass, I

my son, who was seven or eight at the time, said, are we not a family anymore? It's very, it strikes very emotionally at the heart of everybody who's undergone this and being treated differently is sort of, I'm a 14th Amendment kind of gal. And so talk a little bit about why this continues to be a thing historically. Yeah, so public opinion nationally and across states has continued to move in favor of

of marriage equality in the years since the court ruled in 2015. This year, Gallup, I think, had it at 71%, including a majority of Republicans in the United States support the right of same-sex couples to marry. And that's a consequence of the cultural shifts that took place, the political debate, I think, exposure through state and federal litigation. And one thing was, as you look back at the political fights that took place, you know,

50 states in some form or another went through this and a few rounds of major conflict in Congress over the Defense of Marriage Act and then the Federal Marriage Amendment, is that there was a sort of component of this debate was a question about

what it meant for private institutions. Would churches or synagogues or mosques have to marry gay couples? That was often held up as the kind of religious freedom, religious liberty component of this political discussion. And it was never a serious threat because courts have always recognized

you know, the ability of religious congregations and their ministerial capacity to make these decisions. There wasn't really a public discussion about what this meant for private actors in the wedding adjacent industries. Right, right. And so I think Americans who, you know, have come to terms with the idea that same-sex households are—

entitled to all of the same public rights and benefits and recognition as opposite-sex households, weren't really exposed to a debate over what does this mean for these rather small niche parts of our economy. And so this is now, I think, being introduced in courts and Americans for the first time are having to reckon with the balancing of these two constitutional...

guarantees. So, Deal, you filed an amicus brief for the gay couple in the Masterpiece Cake Shop case, and you've said this case is different. I want you to talk about what's different to you at the heart of this case and how, why you, I'm not saying shifted, it may be completely in line with the way you think about this, but you've, just so people don't know, you've worked to advance gay rights over your career. You were president of the Log Cabinet Republicans of

Texas back in the 1990s. That must have been a party. Doesn't finding for Laurie Smith and 303 Creative, which is her company in this case, start to chip away at the foundation? Yeah, well, first of all, I mean, I can tell you my husband disagrees with me on this issue and probably agrees more with Louise on it. So I'll have to be careful with what I say here. But so the cases were different on their facts to the extent we even have facts. We have a sort of federalism.

fabricated set of facts in this case, but in that case, we had actual facts. And there, the couple walked into the bakery and simply sat down with Jack Phillips and said, we'd like to get a cake for our wedding. And at that point in the conversation, they

Jack Phillips simply said, I don't do same-sex cakes. I don't design or create these same-sex wedding cakes. I'm sorry, you can look at another bakery down the street. So for us, that looks a lot more like status-based discrimination against a gay couple and against their wedding.

Right.

Here it's different. There is a message-based discrimination because it's been conceded, especially by the lower courts and even by the state of Colorado, that what this website designer is doing is in its nature expressive. It involves the creation of words.

the design, the symbols, the graphics, and the creative compilation of all of those things. This is speech in its essence. Now, there are going to be... Let me interject here. When is a cake not a cake? Isn't a cake expressive? Well, no. Actually, I would say that...

cakes ordinarily are not expressive. They are things that we provide for taste. People like the taste. They like the calories or whatever, the nutrition, whatever value it has. But they're not in their nature expressive. It's like ordinarily a meal is not expressive. Well, some people think it is. Going to McDonald's for a quarter pounder is not expressive.

Simply saying that you want to violate the law in order to express your disapproval of the law cannot be regarded as by itself expressive because otherwise we would have anarchy. Everybody would be a law unto themselves. Right. So I don't want to make you a hamburger. Exactly. And I'm sending the message that I think you shouldn't eat hamburgers or whatever it happens to be. I don't think gay people should eat hamburgers. That can't be right.

Which we've seen in the civil rights with lunch counters, etc. Well, exactly. And so what the court has done is it has repeatedly had to draw lines between what is expression and what is not expression. When is conduct expressive and when is it not expressive? And it is said that an act can become symbolic and therefore protected by the First Amendment when there is both a subjective intent to send a message, which there is in this case, and

And there is an objective realization by others that a message has been sent. Both of those criteria, I think, are met in this case, at least as it's presented to the court. And that's what makes it different. We always have line drawing problems in the First Amendment. This is not unique to this context, and it's not unique to the court going down the road.

All right. So, Louise, counter that, or you might agree with some of it. Is this expressive? And does that carve out a special right here for people? In this case, she couldn't do a plug-and-play website, presumably, that everybody gets, right? She couldn't deny them that. That's right. But this is, what do you think about this, Louise? So, I guess just to go back to two basic points. First of all, what the law bans is discrimination when you sell a product. And any time you have to know who is this for, then

then that's discrimination. As to the point about expressiveness, and here, let's just play out all the examples. Like, you can hang a sign up, if this argument prevails, in the front of your shop window saying, wedding cakes for heterosexuals only, because that's exactly what Jack Phillips is arguing here. You could turn people away at the photography studio because you do...

individualized family photographs. So you could turn away people for any reason. You can turn them away because of your faith intent or some other reason. You can turn them away because they're Black. You can turn them away because they're interracial. This argument may sound like it's limited, but it is not. And it is just not the case that anything that's expressive is exempt. Dale, would you counter that? So a lot of what Louise said, I think I agree with. It is the case that the government can

target conduct that has an incidental effect on speech. But there are cases in which when the government presumably targets conduct like don't burn a U.S. flag, it actually aims at the speech itself. But the kind of quote-unquote discrimination that's occurring here is based on the message that's being sent by the person who is doing the speaking. That's the problem. It's not an incidental restriction.

I just want to, if I may, go back to what Dale was saying, which is it is expressive to show somebody to the door always because you disagree with who they are. It is expressive even if the goods are not custom made to show somebody to the door because what you're saying is...

I don't believe in you or I, you know, who you are or how you live conflicts with my faith. So I think the expressiveness is, again, is incredibly broad as just as a proposition in terms of messages. Go ahead. Go ahead, Dale. I was going to say, I would agree with Louise that if what's happening here is that the website designer is turning away the couple simply because they're gay, that's not protected by the First Amendment.

She has to offer them services that are not expressive in their nature, but she does not have to send messages or create messages that she disagrees with. I think that's the – But by saying, you know, John and Jim, isn't that – she won't even put John and Jim on there, right? No, I think actually – and this was conceded by the lawyer for ADF, at least I heard yesterday, concede the idea that she can't just refuse to serve a gay couple.

that she has to serve the gay couple. She has to, if she has a plug and play kind of template for websites, she has to provide that to the same-sex couple. If she's just providing prosaic details about the timing of the wedding and the place and all that kind of stuff, that's the kind of thing she has to provide. And I hope the Supreme Court will make that clear because I think it's going to rule in favor of the website designer. We'll be back in a minute.

Let me let me ask Sasha, that decision in Masterpiece was written by Justice Kennedy, who wrote many of the decisions protecting gay rights before he retired. Does this represent a potential chipping away? Dale just said he thinks they're going to win on this very narrow thing. What does it mean, Sasha, from that decision? I mean, we've seen a significant shift in the court since since Kennedy left and he wrote the majority opinion, not only in the two marriage cases, but

two preceding sort of landmark gay rights cases, about one of which Professor Carpenter wrote a great book. And so that, you know, Kennedy's departure and the arrival of the three Trump justices, I think, mark a big shift in where the court is on a number of questions, obviously. And, you know, there are...

A lot of folks in the gay and lesbian community who read Clarence Thomas' dissent in the Dobbs case in which he picked out a couple of gay rights precedents and indicated that they ought to be next if the court is going to stick to its sort of substantive due process thinking in the abortion case. Some of that I believe is far-fetched, but I suspect that there will be six votes for a rather expansive understanding of what –

the ability of private actors, whether on speech terms or religious liberty, religious freedom terms, to sort of exempt themselves as individuals from having to accept the court's previous decisions on gay rights.

You know, the Kennedy author decisions. Right. Right. Louise Dale said earlier that this is a pre-enforcement action, which sounds like pre-crime from Minority Report. Smith's company hasn't even started offering wedding related service. In fact, the first question during the arguments this week from Clarence Thomas, who asked whether or not this your case is ripe. So what does that mean? Is that is that a problem? Will the court say this isn't ripe enough?

I would not say based on the argument that the court seemed interested in going in that direction. Dale, do you think there's a ripeness problem here? Well, I mean, in theory, you could see it. But based on the oral argument, I don't see that going anywhere. There's an option for the court to do what's called a dig.

That is to dismiss the case as improvidently granted. That is, they change their mind. They shouldn't take the case. I didn't see a lot of enthusiasm for a dig in this case. I think they may issue a narrow decision saying that the First Amendment applies to public accommodations laws, that when those accommodations are expressive, you need to consider the expressive interests.

And that the state has to show that it can meet the strict scrutiny standard that is applicable to those kinds of burdens on speech. At least I think that's the decision they could issue. And Louise, do you think that's the case?

That that's what they might do? Yeah. I certainly think that's what they might do. And I think that this idea, this notion that this, what's at issue here is different because it's expressive, is really just a way of kind of distracting people again from what's happening, which is the discrimination. If you need to know who this is for, it's discrimination. And it's not enough to say, I'll serve you a cupcake.

but I won't serve you this. We all know what that's about. If you have to ask who this is for, it's discrimination. And that's not what the public, our civil rights laws intend to tolerate. It's not what we've tolerated. And this, if the court rules this way, this will be the first time ever in the history of our civil rights laws that the court will have carved out an exception.

Okay, so now the two Loder courts ruled against Smith. All of you, first you, Sasha, was this case brought with an eye to bringing it to the court? Is it cooked in that direction? Because she's an appealing character. She seems very pleasant. You know, I think she's a perfect candidate.

to be arguing this in a lot of ways. Sasha, you start. I mean, the Alliance Defending Freedom has been looking for cases like this for years. This is the same organization that represented Masterpiece Cake Shop in 2018. Yeah, it grew out of, basically it was created as the public interest law firm for the evangelical right. And they talked a whole lot in the 1990s and 2000s about the need to be doing conversations

constitutional litigation on behalf of religious interests, the language was always, we are, that this is a fundamentally Judeo-Christian nation and that biblical values should be reflected in family laws.

They lost that as both a legal fight and a political fight, a fight and a cultural fight. And so they have now been looking for sympathetic plaintiffs to argue totally the totally different posture it is in individuals are the victims of a, you know, in their view, sort of

secular regime that is forcing them and they've inverted the fight right and so you know they've now sort of assumed the mantle of of

civil rights and civil liberties. Yeah, no, it's rather clever. And so, yeah, so I think that, you know, they've been smart to try to find plaintiffs who are, you know, the little guy and are besieged by, in their view, a, you know, tyrannical state of Colorado. That's definitely the best posture on the sort of public education side to go into court. We

Weis, can you just very briefly, because Kim Davis was not the most compelling person, right? She seemed problematic, I would say, as a plaintiff. I just want to say I agree 100% with what Sasha was saying. And in my office, we often refer to this as plan A and plan B. Plan A was to resist, for example, the recognition of marriage for same-sex couples. Plan B is once you lose that fight to

to then go and punch holes in the protection as a way to continue to erode the right. By the way, they don't like plan B, but go ahead. That's a different plan B. Acutely aware of that, but I appreciate the point and the humor. They hate plan B. And by the way, we have a plan C. The one thing I would just say about a characterization of the plaintiff is, in this case, it looks like a nice plaintiff, but certainly as plaintiffs,

Friends of mine who are in same-sex marriages have said there's nothing nice about being told that, to use the words from yesterday, that my marriage is false. There's nothing nice about, you know, turning me away. And so I think we have to continue to pay attention to what's really at issue in the case.

Dale, what about your thoughts on that? Well, I mean, first of all, I can't really speak too much to ADF's litigation strategy, but to the extent they've tried to select carefully the litigants, that's not unusual for cause litigation. I mean, that's true of the gay rights movement, too. I do think ADF has a much longer history of opposition to LGBT rights in general. I think it goes back to really even Lawrence versus Texas, if I'm not mistaken. So this predates marriage.

But I will say, to me, the cause of LGBT rights is based on the notion of individual autonomy and self-determination. And we should be able to take our whole selves into the workplace and into the marketplace and so forth based on our sexual orientation or gender identity.

But I think what's true for us is also true for religious conservatives. They need to be able to take their whole selves, including their deepest beliefs about marriage and other things, into the workplace and into the marketplace. And if we are saying that people who believe deeply in these traditional marriage values

Cannot practice, cannot do so, cannot earn a living without violating those deeply held beliefs. I think we're saying something very profoundly disturbing and contrary to the basic premises of our movement.

So good for you, not for me. Okay. So Sasha, let's finish up with the implications and impact. This case was heard as the Respect for Marriage Act is making its way through Congress, probably going to be signed by President Biden relatively soon. It requires states and federal governments to continue to recognize same-sex marriages, regardless of any Supreme Court decision. It passed the Senate this last week, is headed for the House. There's also implications in it where they don't have to do it themselves. The states don't have to have them, but they have to recognize the marriages themselves.

It doesn't go as far as the Obergefell decision that legalized gay marriage. It overturns DOMA, should have been overturned a long time ago. Is it a fight that will stay in the courts once this is passed? Is this moot in that regard?

For marriage? I think this question of private actors having to recognize marriage is going to be around for quite a while. And not just in the courts, but as state legislatures look at their non-discrimination equal protection laws, we'll probably be thinking about what might have once seemed like these weird edge cases about marriage.

you know, florists and website designers and, and, and understanding the limits of them. I mean, there's been a bit of a sort of reemergence of a political debate around marriage because of, of what Clarence Thomas wrote in that Dobbs decision. And so, you know, like, I think it's pretty, probably pretty unlikely that, that, um,

Somebody has a facial challenge head on to Obergefell and finds another four votes after Clarence Thomas to to revisit that precedent. But I do think that that as Louise talked about, that this sort of punching holes in in what marriage means broadly is going to be an ongoing an ongoing fight. And I think in macro terms, you know,

one thing that happened was that this big public debate that we had over a couple decades in the United States over the meaning of marriage ended up, not just in the gays and lesbians won that fight, but that they ended up in a certain way elevating marriage as a public thing

institution in American life. You know, I mean, marriage was not in a great place in the 90s. At large, divorce rates were high. Straight people weren't, like, rushing to get married. And gays and lesbians instigated a public conversation over why marriage is important, not just to them, but to society broadly, to children, to communities. The, you know, massive range of amicus briefs that were filed in the Windsor and Obergefell cases showed, you know,

The labor unions knew that they had a stake in what it meant to be married. The companies had a stake, you know, everything. And what we're starting to see, there was always this thing bubbling up first on the left and then on the right of the marriage debate, which is like, why is the government in the marriage business to begin with? And we heard this through the 80s, 90s, 2000s. And I think this might start to be the, you know, a beginning of kind of privatizing marriage again, where the right decides we lost the big fight over marriage.

who's allowed to marry and what the government has to do. But we think that, that we can sort of, um, uh,

devalue the public good of marriage and reassert the right of private actors to kind of determine what marriage means in their own lives. And I think this is going to be a discussion that's with us for a while yet. But marriage itself would be protected with this. Yeah. And the question is what it's worth, right? I mean, you probably have a big collection of wedding certificates from around the hemisphere. Oh, I do. I do. I have them all. And, you know, and I think the question is, yeah, your local county and state and

may say you're married, but does your local gym need to recognize that? Does the payroll department at your company need to treat you the same way they would treat someone else that has that? And I think that that's a...

could be an open question. Yeah, it's interesting. When the Wall Street Journal didn't recognize my partner at the time after we were married, they wanted all my, her stock information. She worked at Google and I said, well, you don't recognize her, so she doesn't exist. So no, I'm not going to give it to you. And I said, the minute you recognize it, I'll give it to you. And they're like, you have to. I said, no, she doesn't exist as far as you're concerned. So no, I refuse. And it was really interesting back and forth. But let me

finish up with the two of you, Dale and Louise, from a legal point of view. Dale, in arguments this week, it seemed that the conservative judges were leaning in favor of Smith, which you think is happening. You said you could see the court issuing another narrow decision. Are there bigger implications even to a narrow decision? What is your worry, even though you're...

porting 303 Creative in this case and had the opposite sort of take in the Masterpiece case? Well, so I would certainly not want to see a decision that broadly recognizes a right to discriminate in the case of gyms and things like that or employment or head language suggesting that kind of

result. I don't want to see anything like that. I don't think that's what we're likely to get. And I thought actually several of the justices were considering, like Barrett and Kavanaugh and maybe even Gorsuch, were trying to suggest a narrower approach to this case. Gorsuch specifically said that these plaintiffs are not necessarily going to get the relief that they want, which is to not have to serve gay couples at all.

I do want to resist, I should say, the narrative that I see emerging in some circles in the LGBT community especially that these kinds of cases are part of a sort of piecemeal deterioration or detraction from the recognition of marriage and the sanctity of our marriages.

I don't see it that way at all. Actually, I think that what we're seeing work out now is a kind of settlement in the country. The vast majority of the country agrees that same-sex marriage is a good thing for everybody, including Republicans, as Sasha pointed out earlier. That's a significant development.

But they also need to see that there's a space for people to disagree and that anti-discrimination law cannot mean the suppression of speech that disagrees with those legal norms. So this is a part of the live and let live tradition of America.

To what extent are we going to let people live out their beliefs and express their beliefs? And I think that's a good thing for same-sex marriage in the long run, not a bad thing. I think it means it's here to stay and it's become part of the culture of this country in a profound way.

Gay people are very concerned. We always think they're coming for it. You know what I mean? I have never not thought they'd given up on this. But Louise, why don't you finish? Should the court rule in favor of the business in this case, the court will for the first time have said that there is a constitutional right to discriminate. I do not see a way for this ruling to be narrow in the sense that whatever is expressive, cakes, flowers, flowers,

websites, et cetera, et cetera. That is not narrow as a category. And also once the court creates this opening, I mean, look, there's already cases all around the country, pressing, pressing, pressing against the anti-discrimination laws and that will continue.

And so this will just be fodder, I think, in a real way. And then last, yes, the business owner in this case can continue to express her views no matter what. She can continue to...

articulate her view that marriage is between a man and a woman and that marriages of same-sex couples are false. That is a radically different proposition from whether what her conduct in the public sphere is. This isn't about stopping her expression. This is about stopping the conduct of discrimination. And we can't pretend that we're shutting her up. This is about our nation's civil rights laws.

All right. On that note, this has been a really thoughtful discussion. I really appreciate it from all of you. I think it's really important to think about the implications and not, I'm not saying not get emotional because I think you should get emotional. It's very emotional for gay and lesbian couples, for sure. And for everybody, not just gay and lesbian couples. Well, for now, I'm going to stay gay married. We'll see what happens. I usually, when people say gay married, I'm always like, you know, I'm just married, just married. You can just use married, you know, and it's so funny. It's so funny.

The person that says gay married the most is you, Cara. Yes, I do, because they say that to you. Do you like your gay marriage? I'm like, well, do you like your, I'm trying to say, I don't even know what it, you know, do you like your straight marriage? Like, I don't know why they say that word all the time. And it's, you know, the same thing when you have kids, they always ask you how you had your kid. Like, I don't ask straight people their marriage.

how they conceived. It's just bizarre. I find it bizarre. But whatever. They're trying. They're trying. You know, at the same time, most people are trying and have a good heart about it. It's just, it's nerve wracking. And the fact that it's nerve wracking is ridiculous. Like, we're just like everybody else. Like, you hate to have to say that. Yes. 100%. 100%. I really appreciated Sasha's point about gay marriage really resurrecting faith in marriage again across the country. Yeah, it's true. Literally only gay people want to get married. That's

The most interesting part of that conversation for me was the tension between Luis and Dale. Yeah. They were very respectful. I mean, they're lawyers. And, you know, I love that when I see... Dale is really interesting because he has a much more, I guess, nuanced... Yeah, he's very nuanced. And, of course, he's from the Log Cabins, which is a Republican group. And he goes based on argument, which is the way you kind of want your Republicans, like, based on policy. Yeah, you want to know what the philosophy is that underpins that, and that's consistent. Right. A lot of... That's...

That's what you want. It's like, what's the actual law here? What's fair? And how have we changed? And believe me, I'm under no, you know, Obama was against gay marriage for Hillary Clinton. Yeah, for a long time. Bill Clinton did don't ask, don't tell. Like a lot of, like nobody's got to. Which has always struck me as kind of strange in the States because having lived in Europe for so long, there was such a. I think they were political. Yeah, extremely political, extremely political and the power of the evangelicals.

Let me just say one story. One time, one of those people, I'm not going to say one, said something like, America's not ready for gay marriage. And I turned to them and I said, it's called leadership. I don't know what to tell you. And the only leader in that game was Gavin Newsom, of all people. What does it mean, America's not ready for gay marriage? I've always found that a very interesting thing.

about what broader community is. By the way, they should get ready for a lot of things. I think modern, like new generations, there's going to be interest in throupling. Yeah, well, there's a lot of pushback. There's going to be a lot of pushing. There's a lot of pushback on pronouns. I mean, honestly, when people go crazy about that, I'm like, what do you care? What do you care? Let people call themselves whatever they want. If you believe in free speech, let them call themselves whatever

It's such a strange argument. And it's mostly about them. In my age group, I think there's been a kind of realization that we've gone too far. Like marriage has gone away a little bit, even in the straight community. And people want to be married. People are like thinking about that. The pandemic has changed people's attitudes. A lot of people got divorced in the pandemic. I know. I know. I'm looking for them to date. All right. On that note, let's get to my rant.

I have always have a rant about this. It's a big issue because it's so ridiculous on its face. But let me start. And I'm calling it onesie.

I talk to my oldest son a lot these days about all manner of things, his schoolwork at college, my upcoming surgery, a new bakery he loves. This nightly chit-chat is not unusual since we have bonded in a way that has been unbreakable since he was born, closing in on 21 years ago. But it's longer than that, really, since I've wanted to have kids since before I was his age now, despite the fact that when I was that old, it was nearly impossible to imagine getting married and having children as a gay person in America.

To say that times were different then is an understatement. The raft of difficulties and discrimination was huge, and support among friends and most certainly family for creating my own family was exactly nil. Still, I can't forget to this day driving my powder blue Volkswagen Bug convertible to an outlet mall deep in Virginia when I was a college sophomore at Georgetown University to buy some Christmas presents.

While there at a Carter's discount store, I saw on the rack a striped red and white onesie that I could not stop coming back to because the thought had suddenly entered my brain that a baby I would someday have would wear it. So I paid $8.99 and took it home and kept it with me in a small box, tag still on, until Louie was born 20 years later.

I tell this story because with that simple piece of fabric, I was saying to the world that I could have what every other straight person never imagines they could not have, equal rights under the law. So when I see this newest case, one of so many in an endless line of legal arguments that have sought to restrict in some small and petty way or even end my ability to create my family,

While disheartening, it has also not stopped the onward progression of my family and many others like it who only wanted the very simplest of things to make something greater than ourselves that will go on well beyond our time on earth.

Last night, my son, after talking about her concerns for my elderly mother and the emotional toll it is taking on him, sent me a song by Nas called Once a Man, Twice a Child with the lyric, Meanwhile, when you get old, you might become futile. Maybe so for most things, except that onesie, I've had four children and have had three of them in it before it got into some box in the closet where I don't have time to find it.

I will again, and then with great hope, I'll hand it to my son. Oh, this is going to make me cry. Aww. But I, sorry, let me do this again.

Dead kittens. Dead kittens. Dead kittens. That's what cheers you up? Yes. No, it makes me not. Yeah, that's what cheers me up. Dead kittens. It's a joke. Okay. But I will again, and then with great hope, I'll hand it to my son for his own child, this bargain that without any permission, any fight, any Supreme Court weighing in, becomes priceless and really eternal. Is it a rant if you cry? No. I'm excited. Dead kittens. Dead kittens.

All right. You want to cry through the credits? No. You want to rant through those credits? I'm going to rant. Get cheerful. I'm excited for my grandchildren. Supreme Court, be damned.

Today's show was produced by Naeema Raza, Blakeney Schick, Christian Castro Rossell, and Raffaella Seward, with special thanks to Adam Schibble. Our engineers are Fernando Arruda and Rick Kwan, and our theme music is by Trackademics. If you're already following the show, you get a wedding. Everybody gets a wedding. If not, you can also get married, but you can still go wherever you listen to podcasts, search for On with Kara Swisher, who has been married, and hit follow.

Thanks for listening to On with Kara Swisher from New York Magazine, the Vox Media Podcast Network, and us.