giving you a from will see democracy -- front row seat to democracy. >> during their 2022-2023 u.s. supreme court term, the justices ruled on some of the most controversial topics. this week, c-span looks at some of the occasions that involves voting rights, affirmative action, executive power and election laws. tonight, 303 creative v. elenis -- she argued it violated her first amendment rights. watch the supreme court arguments this week or 9:00 p.m. eastern. joining us now is william eskridge, professor of public

law at el law school. -- at yale law school. the supreme court ruled 6-3 in favor of lorie smith, who wanted to refuse service to same-sex couples. can your spending hundreds of that case and her argument? guest: smith is the creator of 3 03, established website design company. she wanted to expand into customized wedding website hurt stipulation before she opened it -- and she never did before the supreme court decision -- was that she would only do websites for marriages that met with her approval. that did not exist -- king -- include same-sex marriages. she stipulated that this would be her position.

she feared she would be prosecuted. so she brought a preemptive lawsuit in federal court to get an injunction against the application of colorado's antidiscrimination law. indeed, her business would be considered a public accommodation. colorado statute says that public accommodation has to give full service regardless of race, creed, sexual orientation, etc. she brought the lawsuit and claimed that even though the halloween statute, she felt, would be applied to her, it would be unconstitutional, a violation of the first amendment. the argument was that colorado would compel her to engage in expression in violation of her moral and ethical beliefs. host: let's look at a portion of

that decision from neil gorsuch, writing for the majority. he says, "in this case, colorado forces an individual to speak in ways that align with its views. but, as this court hasong held, the opportunity to speak for oursves and express thoughts freely is among our most churched liberties and part of what keeps our republic strong. tolerance, not coercion is the answer. all persons are free you think and speak as they wish, not as the government demands. because colorado seeks to deny that promise, the judgment is reversed." your comments? guest: one of the interesting things about the 6-3 decision is that colorado had not done anything to coerce lorie smith.

there was never a prosecution or a complaint against her. there were stipulation about what he was doing, but there was never an opportunity for the colorado civil-rights commission to apply the statute to her. if she was correct, which was her claim that gorsuch accepted, that i am not discriminating because of sexual orientation. i discriminating based on message when i express a wedding website in the event that i want to. that does not violate the colorado statute. the colorado statute only prohibits the denial of equal rights because of sexual orientation, not because of message. one problem with the case from the beginning is that the six justice majority and the three justice descent work -- idsse -

dissent were talking about entirely different things. the dissent was saying that lorie smith was discriminating against all gay and lesbian couples. she was saying, and gorsuch accepted, that she was only discriminating based upon message. host: i want to ask about the concept of standing. there were no complaints brought against her. apparently, the person named, who was called stuart this has been to be, might, stuart says that never happened. he has been raped to a woman for 15 years. that did not come up in this case.

does lorie smith have standing to bring the case? guest: the majority and lower court ruled that she had a legitimate fear of being prosecuted and that gave her standing. that is a plausible argument, but the case was not really judicial. it was not really clear anybody was going to bring a complaint against her. more importantly, it was unclear what the colorado civil rights commission would have ordered. she is correct, and neil gorsuch is correct, she did not violate the statute. if she did, it is not clear that the commission would have required her to give any particular message on her website. instead, it could have ordered her to talk to gay and lesbian couples, see what kind of

generic website you can create for them, and we will look at it again if a complaint is brought based on that. host: i will remind our viewers that you can give us a call if you would like to ask a question or make a comment. republicans, (202) 748-8001. democrats, (202) 748-8000. independents, (202) 748-8002. we also have a line for those who identify as lgbtq. that number is (202) 748-8003. you can also use that line to send us a text. i want to show you a section of the dissent from sonia sotomayor. she says, "the unattractive lesson of the majority opinion is what is mine is mine and what is yours is yours. the lesson of public

accommodations laws is altogether different. it is that in a free and democratic society, there can be no social task. and that must be true the public market. the promise of freedom is empty if the government's powerless to ensure that a dollar in the hands of one person will purchase the same thing in the dollar of the hands of another." guest: justice sotomayor is taking us to the issue of tolerance. the battle between the majority and the dissent is the meeting of tolerance. sotomayor position is that a tolerant society is one that allows euro -- or home, church, synagogue to enter into speech, but if you offer a business, a

restaurant, hotel, you have got to abide by the rules of the road that includes access to all members of society on an equal basis. those are two different understandings of tolerance. gorsuch says tolerance means you have got to allow business people to discriminate based on sexual orientation. why not based on religion? does lorie smith refused to do weddings for catholics? jews? interracial couples? if she has a moral objection to interracial marriage -- with maybe -- which maybe millions of americans do --, supreme court opinion would seem to protect them. is that a tolerant society, one that allows racism in a public forum, as well as homophobia, anti-semitism and public

websites? justice sotomayor is saying the opinion opens the door to that possibility. lorie smith is a black box. we have no idea what she believes about anything. there is no proceeding. there was no formal taking of evidence for the colorado civil rights commission. there were stipulations between the state and lorie smith, but no testimony under oath by her about these other issues. host: justice sotomayor says the lesson of the history of public accommodation loss is different. where is that history? host: public accommodation laws come from common law originally, where hotels, restaurants, other things that were essential in common had to be open to everybody, like taxicabs. if you try to hail a taxi cap,

it cannot refused to carry you based upon religion, sex, etc. the states have expanded the definition of common carriers to include most public businesses. this is why websites are apparently included in the colorado accommodations statute and probably many others. host: let's talk to some of our viewers. jessica is in tombstone, arizona. good morning. caller: this is jessica. my name used to be jesse. do you remember me? guest: i can barely hear you. caller: hi, william. this is jessica. my name used to be jesse. do you remember me? guest: i have met many jesse's.

caller: anyway, let me refresh your memory. we met when i was -- host: looks like we lost her. try to call back, jessica. mary is in auburn, new york. democrat, good morning. caller: i had an experience when i was pregnant. found out i had cervical cancer. my doctor was catholic. he could do the biopsies, but he said because of his religion, he could not do my hysterectomy. i respected his religious beliefs. he found me another doctor that would do the surgery. i think that lack of respect for people's religious feelings,

beliefs is outrageous. because there is more options and i am sure you find plenty of people to do what you need done. i thank you for letting me tell you this. have a nice day. bye. guest: i appreciate your account. i think you are right. this goes to the tolerance debate between gorsuch and sotomayor. consider this -- say your operation were an emergency and this doctor was the only one available and refused to treat you because of your sex or your religion or marital status. what then? that is one reason why the court did this country a disservice not requiring the state to bring a complaint and take evidence

and see what remedy the colorado civil rights commission would enter against lorie smith. i think every case is distinctive. the track whether you are a commission or judge is to figure out a way for mutually different points of view to reach some kind of accommodation. host: lorie smith. en newsmax, along with her lawyer, the day of the decision. >> the court's ruling today affirms that the government cannot force anyone to say something it does not believe. this protects lgbtq graphic designers, jewish calligrapher is, democrat speech writers. everybody should be free to create in line with what they believe. free speech is for everyone. the last seven years, i have been censored and silenced by

the state of colorado. i am grateful that the supreme court is protecting everyone's speech. i just want to create something that is consistent with my beliefs. it is that the governments rule or job to force a citizen to speak messages that go ahead -- against their beliefs. after seven long years, i am excited for the next chapter of this journey and grateful for the decision today. host: i know you disagree. she says she has felt censored. what do you think? guest: you feel censored, even though colorado never brought a complaint against her. it was self-censorship. if a gay and lesbian couple had tried to use her website or services, which they did not, then they would feel censored. the question is -- and this is why the court was unwise to take

the case -- is that with the court should be requiring is some sort of process of mutual accommodation where for example the colorado civil rights commission, if it'd found a violation, which it might not have -- if i were on the colorado civil rights commission, i would not think your creative expression to be a violation of the statute. host: but had she had a gay couple come to her and say, we want you to do our wedding website and she said no, i do not believe in that. i am not going to do a web safeway gay couple. then she would have had a complaint filed against her. and you believe she would've had standing and could have taken this to the supreme court? guest: no. i am not sure the colorado civil rights commission would have ruled against her. here is an important distinction

between a right and a remedy. the colorado civil rights commission could have found that if you deny all services to gay and lesbian couples that that would violate the statute, but if you provide basic services that do not include any endorsement of same-sex marriages, then that would not violate the statute. if you refuse to do the customization that you do for other couples, that would not violate the statute either. we do not know what they would've ruled. the supreme court short-circuited that process. that is a key point. and here is another key disagreement between sotomayor and gorsuch. there are two propositions they both agree with -- that discriminating based on status can be regulated. discriminating based upon pure message cannot be regulated, at least not the.

the problem is the interracial couple, the catholic couple, the lesbian or gay couple that comes before a wedding vendor and says will you do something for our wedding, that vendor is discriminating both on status and on message. and so you can talk about any of these cases as either status or message. that means that the way gorsuch brought his opinion is that either argument can be used by either side. the supreme court can dance around this dichotomy in any way that it wants, usually on the site of religious vendors. -- side over the just vendors. but that is submerging the deep issue. host: the case has drawn comparisons to the colorado case involving a baker in 2018 wanted

to refuse making wedding cakes for same-sex couples trip how is this different? how is this similar? guest: the main differences there was a colorado civil rights commission proceeding. the supreme court properly chastised the commission for not behaving neutrally with regard to religion and other complaints brought by a religious purchaser against bakeries who would not bake anti-gay cakes. the supreme court went off on a very narrow ground in the masterpiece cake shop case. this case is different because it is substantially more abstract. it does not have the baggage of a discriminatory proceeding. i would give the colorado

commission the benefit of the doubt that there is a learning curve. they want to follow the law, i would assume. they would want to take this issue more seriously and come up with a more judicious resolution than in the earlier case. give colorado a chance. let them explore the nuances and complexities of the rights and possible remedies. host: looks like we've got just got back from tombstone, arizona. by head. caller: this is jessica again. i am transgender. my name used to be jesse. do you remember me? host: go ahead, jessica. we not put him on the spot. caller: we met when i was 12 and a state where the age of consent is 18. do you remember me now? host: let's move on to cory in the villages, florida, independent line. caller: that is a tough act to

follow. i am in florida but from colorado, suburb of denver. these cases were happening while i was there. i found following on the fringes , there was not a lot of media coverage about the fact that it was brought up in court that the cake man in lakeridge was set up by a gay organization to get there slip in the door and get free press. deskjet t -- get their foot in the door. and jack at the bakery, his life and business were roomed as a result. time to file a civil suit or anything against the state or

his commission to bring back portably his livelihood as a cake maker. thank you. guest: i think one lesson from the cake shop case is that litigation often produces no winners. remember, the cake shop operator won the supreme court battle and yet still perhaps lost the war. in my opinion, and traveled the nation, been on the lot of talk shows, most fundamentalist americans do not want to discriminate against lgbtq persons. most lgbt persons do not want to put religious vendors and individuals on the spot by demanding things that they are not willing to give. to some extent, these cases are not microcosms but distortions.

justice gorsuch did an even deeper disservice to america by taking a case that was not really a case, blowing it up, and creating this dichotomy between status and message, which is an unstable one and sure to be divisive, as the debate between gorsuch and sotomayor was. it was a depressive debate -- divisive debate were bitter words were exchanged. host: colorado's attorney general reacted to the ruling, saying it paves the way for all sorts of businesses to turn away lgbtq customers. >> as we continue to see promises to destabilize the public marketplace, enabling and encouraging all types of businesses, not just those who make websites, to have a first amendment right to refuse

customers because of who they are. that means a business could refuse to serve an interracial couple, claiming that interracial marriage is wrong. it means a payroll company or photographer could say, "i do not want to do business with woman-owned businesses. i do not believe women should work outside the home." it means a bookseller could say, "i will not sell books to members of the church of jesus christ of latter-day saints. i do not believe that is a legitimate religion." and so on. this case will undermine the principal that once you open the doors to the public as a business, you have to serve everybody. host: do you agree?

do you think this will open the door for other types of cases like this? guest: it will certainly open the door to other kinds of lawsuits. i am not sure it will have a huge effect on american society. most religious people do not want to discriminate. most lgbtq people do not want to disturb religious autonomy. but it will encourage litigating groups, warriors to br