The Family Feud with Hila Keren Continues . . .

The Author, recovering

Thanks to Hila Keren for her response to my thoughts on 303 Creative.  As indicated at left, in addition to giving me a shiner, she seems to have knocked my beard off.  Hila has thought much more deeply than I have about the harms suffered by people who are excluded from markets, and I hope that she will consider writing (if she has not done so already) an amicus brief that might help the Court think about these issues as it presses forward with 303 Creative. 

I start with a clarification and then I have four challenges for Hila.

The clarification: I did not mean to adjudicate the merits of the case in my earlier post.  That’s not how the rights mediation approach, as I understand it, operates, as the adjudication of each case requires a careful consideration of all of the relevant rights and interests, and 303 Creative does not provide the basis for such adjudication.  I think the petition was improvidently granted.  That said, I think Hila has done an outstanding job specifying the seriousness of the harms people suffer when excluded from what she has called, quite aptly, market citizenship. 

Challenge #1: Part of the problem of rights absolutism is that under current doctrine the harms that Hila identifies are not legally cognizable, as far as I can tell.  Contracts rights lose out, and it’s not much of a fight, when opposed to First Amendment rights, whether those rights sound in freedom of expression or Free Exercise. 

Challenge #2: While Hila has ably described the harms suffered by LBGTQ+ people excluded from market citizenship, she has not (at least not here) weighed the countervailing interest in not being compelled to speak.  In order to clarify how significant that interest could be in a situation like this one, permit me to borrow a hypo that Eric Segall posed to Brian Leiter in an episode of his Supreme Myths podcast. 

Imagine if instead of web design, 303 Creative was a business entity created by a singer who specializes in singing religious songs for weddings.  A same-sex couple may have heard the singer at a wedding.  They found the singing moving and beautiful, and they wanted it for their wedding, because they share (or think they share) the singer’s Christian beliefs.  But the singer believes that same-sex marriage is sinful and a desecration of a sacrament.  The singer’s interest in not being compelled to sing for a same-sex wedding seems quite substantial to me, and I think it would be very challenging for a court to weigh the psychological torments of exclusion from market citizenship against those of forced performance in this instance.  One advantage, at least to me, of the rights mediation approach, is that it is very hard to know in advance how the case is going to come out. Even if it comes out one way on one set of facts, it could come out differently in the next case, and the next, and the next.  So the law progresses by slow accretion of precedent rather than through the Blitzkrieg of impact litigation.

Challenge #3: I can’t be saying what Justice Alito is saying.  I just can’t.  There are real differences between the sorts of harms that arise in face-to-face transactions and those that arise on the Internet.  Hila’s humiliation studies are based on “acts of intentional and public rejection.”  Well, there it is.  Being told face-to-face or even over the phone by a baker that he won’t make a cake for your wedding is utterly different from finding out that a website won’t host your wedding site.  It is not public, it is not personal, and it may not be intentional, in that it is not directed at any particular person.  I could be wrong about this, but I don’t think Hila’s scientific evidence addresses virtual interactions.  I think about what my LGBTQ+ family members would do if they were seeking out web-hosting services.  They would find one owned and operated by like-thinking people, and they would feel validated and supported by that.  If their search turned up sites like 303 Creative, they would be no more put out than they already are by the knowledge that not everyone is on-board with treating all people with equal dignity and respect.

Challenge #4 (here the gloves come off): I think that Hila mistakes the lex ferenda for the lex lata when it comes to the common law of freedom of contract.  As I understand it, common law freedom of contract protects the rights of the web designer to form contracts only with people who share her religious values.  In my view, the solution here does not lie in the common law doctrine of freedom of contract but in statutory solutions which actually restrict freedom of contract in that they permit the state to compel people, as Colorado seeks to do here, and as 42 U.S.C. §1981 does, into contracts with people they might otherwise choose to avoid.  I’m happy to insist on the ability of people to contract with others, but when I do so, I am engaged in law reform activities rather than upholding the freedom of contract.

Hila has responded to. all of these points in advance in her recent publications:

• Separating Church and Market – a full article about the the Alliance Defending Freedom’s new strategy to sue without dispute with real human beings. This article also covers the corporate entity argument and includes the need to make sure that everyone has freedom to make contracts, in part based on the 13^th amendment;
• Slate shorter piece focusing particularly on 303 Creative going to SCOTUS; and
• Market Humiliation – zooming out and explaining how the humiliation problem is not only with LGBTQ and religious people but also with racist practices making shopping while black into a nightmare, disabled people not served by Uber, large people abused at work, and more. This piece explains how collectives (entire groups, not only those humiliated) are harmed. It is forthcoming with Loyola (and made it onto an SSRN Top Ten list featured on the blog quite recently).