Justice Alito Asks Questions in 303 Creative from Jewish Coalition for Religious Liberty Amicus Brief

Justice Kagan confirms that J-Date is in fact a Jewish dating site.

Today the Supreme Court heard oral argument in 303 Creative v. Elenis. I was pleased that Justice Alito found useful the amicus brief filed by the Jewish Coalition for Religious Liberty. Around the 1:07:02 mark, he referenced our brief, and posed a few hypothetical questions that we raised.

Here is the audio:

JUSTICE ALITO: Let me ask you a -a –and then I'll finish this line. Some hypotheticals in a brief submitted by Josh Blackman, okay? A –a Jewish man and a Jewish woman who are engaged to be married ask a Jewish website designer to build a website to celebrate their upcoming –their nuptials. No problem. Okay? Another Jewish man and a Christian woman who are engaged to be married ask a Jewish website designer to build a website to celebrate their –their nuptials. Big problem. "Many Jews consider intermarriage an existential threat to the future of Judaism." Does that website have to accept the second couple?

MR. OLSON: Again, as we talked about before, if the Jewish website designer has, you know, very explicitly Jewish themes on the -the wedding, they don't need to –on the website, they don't need to take that down for the –the –the interreligious couple that comes. But they –if they offer a general service to the public, they need to offer that regardless of the customer's religion.

JUSTICE ALITO: So the fact that they offer this to –that this is a Jewish –that is offered mostly to Jews, that's enough to make it –or exclusively to Jews, that's enough to make it sufficiently selective to get them out from your –

MR. OLSON: No. I'm –I'm drawing a distinction between what the website designer chooses to put on the website and who the website designer sells the website to. The website designer can choose to put on their websites whatever they want, but they just can't refuse to sell –if they're a public accommodation, they can't refuse to sell that website to someone solely because of their -the customer's or the couple's religion.

JUSTICE ALITO: Okay. An unmarried Jewish person asks a Jewish photographer to take a photograph for his Jdate dating profile. It's a dating service, I gather, for Jewish people.

JUSTICE KAGAN: It is. (Laughter.)

JUSTICE ALITO: 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. (Laughter.)

JUSTICE ALITO: I'm not suggesting that. I mean, she knows a lot of things.

I'm not suggesting –okay. Does he have to do it?

MR. OLSON: Well, again, it would -it would –what Colorado look –it depends. What Colorado looks to is what services the photographer makes available to the public. And if –if the photographer makes that service available to –to others, taking pictures, you know, for use on websites, then probably yes, but it depends on –

JUSTICE ALITO: Okay, Justice –then I really will stop.

And here are the hypos from our brief:

Consider another hypothetical closer to the facts in 303 Creative. A Jewish man and a Jewish woman, who are engaged to be married, ask a Jewish website designer to build a website to celebrate their nuptials. No problem. Mazal tov! Another Jewish man and a Christian woman, who are engaged to be married, ask a Jewish website designer to build a website to celebrate their nuptials. Big problem. Don't stomp the glass. Many Jews consider intermarriage an existential threat to the future of Judaism.[1] Under the 10th Circuit's ruling, the Jewish artisan would be compelled to voice support for an existential threat to the future of his faith.

Let's turn from marriage to adultery. An unmarried Jewish person asks a Jewish photographer to take a photograph for his JDate dating profile. Swipe right for the shidduch.[2] Next, a married Jewish person asks a Jewish photographer to take a photograph for his AshleyMadison.com dating profile.[3] Swipe left for this shanda.[4] After all, adultery is a violation of the Seventh Commandment.[5]

In each of these examples, a Jewish artist would be compelled to betray his conscience. Yet, the Tenth Circuit would force the Jewish artisans to lend their voices to these breaches of faith.

[1] Rabbi Menachem Schneerson, What's Wrong With Intermarriage, Chabad.org, https://bit.ly/3wPo8fz (last visited May 30, 2022) (describing intermarriage as a "calamit[y]" that "concerns the whole Jewish people"), Rabbi Steven Weil, After Pew: What Will It Take to Save American Jewry, JewishAction.com, https://perma.cc/7ZN8-8UXW (last visited May 30, 2022) (noting that an "astoundingly high intermarriage rate" is one reason why "American Jewry is on a train speeding headlong into self-destruction").

[2] In Jewish circles, the word shidduch describes the dating process that (hopefully) leads to a Jewish marriage.

[3] Scott Cameron, The Infidelity App, NPR.org,  https://perma.cc/UNE9-6959 (Last visited May 30, 2022).

[4] Shanda is a Yiddish word to describe something shameful.

[5] The Ten Commandments, Chabad.org, https://bit.ly/3LQZteT (Last visited May 30, 2022).

Update: There was coverage of the brief in CNN and SCOTUSBlog.

From SCOTUSBlog:

The examples come from an amicus brief in support of Smith co-written by Blackman, a professor and frequent commentator about the court, for the Jewish Coalition for Religious Liberty.

"A Jewish man and a Jewish woman, who are engaged to be married, ask a Jewish website designer to build a website to celebrate their [upcoming] nuptials. No problem." Alito says, adding only the bracketed word to the language from the brief, which added "Mazal tov!" to that example.

"Another Jewish man and a Christian woman, who are engaged to be married, ask a Jewish website designer to build a website to celebrate their nuptials. Big problem," Alito says, again quoting the brief. "Many Jews consider intermarriage an existential threat to the future of Judaism."

Does that website designer have to accept the second couple? he asks Olson. Yes, if they offer a general service to the public, they have to offer that regardless of religion, Olson says.

After some further back and forth, Alito is not done with the examples from the Jewish Coalition brief.

"An unmarried Jewish person asks a Jewish photographer to take a photograph for his JDate dating profile," Alito says, quoting the brief before adding his own observation that JDate "is a dating service, I gather, for Jewish people."

"It is," Kagan chimes in quickly, to laughter in the courtroom.

"All right," Alito continues, "maybe Justice Kagan will also be familiar with the next website I'm going to mention. 'Next, a Jewish person asks a Jewish photographer to take a photograph for his AshleyMadison.com dating profile.'"

Alito is leaning back in his chair, so his reference to AshleyMadison.com has a few people around the courtroom turning to their neighbor to apparently ask, first, "What did he say?" And some appear to be asking, "What's Ashley Madison?" And others just have wry smiles as another wave of laughs ripples through the courtroom about the Canada-based dating site marketing to married people or others already in relationships.

"I'm not suggesting that," Alito says. "I mean, she knows a lot of things, I'm not suggesting …" He just trails off.

The Jewish Coalition brief says of the Ashley Madison example, "Swipe left for shanda," with a footnote explaining the Yiddish word "to describe something shameful." (There are other Yiddish lessons in the brief.)

The reserved Josh Blackman I know is probably embarrassed a little by all this attention to his brief. Hah! Actually, within a half hour of Alito's questions — and before the argument is even over — Blackman has posted on The Volokh Conspiracy about it. "I was pleased that Justice Alito found useful the amicus brief" of the coalition, he writes.

From CNN:

At another point in arguments Alito was posing a set of hypotheticals and again engaged Kagan – his seat mate – as he searched for how the case at hand could impact other cases.

He was referring to a "friend-of-the-court" brief filed by lawyer Josh Blackman on behalf of the Jewish Coalition for Religious Liberty in support of Smith. The aim of the brief is to discuss problematic situations for Jewish artisans who object to speaking out about certain topics. A series of hypotheticals was included to show instances in which a Jewish artist would be compelled to betray his conscience.

"An unmarried Jewish person asks a Jewish photographer to take a photograph for his JDate dating profile," Alito began, referring to a hypothetical in the brief.

He paused. "It's a dating service, I gather, for Jewish people," Alito said.

Kagan, who is Jewish, chimed in to laughter, "It is."

Alito decided to plow awkwardly forward with another hypothetical from Blackman's brief .

"All right. Maybe Justice Kagan will also be familiar with the next website I'm going to mention," he said. "A Jewish person asks a Jewish photographer to take a photograph for his Ashleymadison.com dating profile."

The audience laughed as Ashleymadison.com appears to refer to an online dating service and social networking services marketed to people who are married or already in relationships.

It was another awkward moment with Alito adding: "I'm not suggesting that – she knows a lot of things. I'm not suggesting – okay … Does he have to do it?"