I’m going to give Justice Jackson the benefit of the doubt. Anyone, even a distinguished judge, can have a bad day and say something that just doesn’t come out right. Still, it must be said, her contribution to the many analogies and hypotheticals being tossed around in the Supreme Court during the oral argument of 303 Creative LLC v. Elenis, the case where a web designer claims that forcing her to create a wedding website for a same-sex couple violates her First Amendment Rights, was jaw-droppingly bad. Frightening, even.

Justice Neil Gorsuch had correctly noted that the objection at issue was not based on the status of the same-sex couple, but instead, the message that the business owner did not want to send. The question isn’t the “who” Gorsuch said, but the “what.” Exactly. And that’s why CNN’s headline on the case, “Supreme Court conservatives seem to side with website designer who doesn’t want to work with same-sex couples” is false and misleading. Lorie Smith has been very clear that she will work for anyone; she just won’t make same-sex wedding websites. It’s not “Who,” but “What.”

Now consider Justice Ketanji Brown Jackson’s rejoinder. Pay attention, please:

Continue reading →