How to Avoid Discrimination
A strange day in court
Bryan Zepp Jamieson
July 1st 2023
The docket was distinctly odd. The next half-hour was given over to something listed as “an advisory trial,” a term that simply didn’t exist in Judge Meyersota’s experience. Only one attorney and a “client” were listed. He scanned the courtroom confusion softening his stern features. He glared at the bailiff. “Well?” his eyebrows inquired. The bailiff gave a slight shrug and glanced at the district attorney. Meyersota gave a light cough, getting an obedient attention from the DA. “I’m sure I don’t need to tell you that is it customary to have an accused in these types of proceedings. Despite having looked at the accustomed location in this court room for a defendant, such a person stubbornly refuses to manifest. Perhaps you have an explanation for this?”
The DA gave another shrug, one carrying an admixture of dread and resignation to Meyersota’s practiced eye. “Your honor, there is no defendant.”
Meyersota gave a benign smile and glanced down at the desk before him. He looked up at the DA, wearing an expression normally used to reassure frightened kittens. “No…defendant, Mister, erm, Kavano? Am I hearing you properly?”
“You are correct, your honor.” Kavano fumbled at the book he held before himself. Meyersota noted that it was a bible. “The, um, defendant is hypothetical.”
“Hypothetical.” Meyersota paused, considering his next words. “To quote: ‘involving or being based on a suggested idea or theory: being or involving a hypothesis. Conjectural. Speculative.’ Am I to understand that your non-evident defendant is conjectural? Or would the word be speculative?”
Kavano was sweating. Meyersota did not see this as an endearing quality. “Suppositional might be a better word.”
“I see. I see. And what is it that you are asking me to suppose about this defendant?”
“The defendant is a group of people that the plaintiff believes may make unreasonable demands upon her.”
“May make?” Meyersota glanced at his screen. “I see we do actually have a plaintiff listed, and apparently she has a name. Erm, Karen Scalito.” He turned his attention to the woman sitting next to Kavano. “Would that be yourself?”
Scalito stood and bowed her head. “It would, you honor.”
Meyersota knew that declaring a recess and suspending the proceedings would be his only real course of action at this point. No defendant? Could you even HAVE a plaintiff if there was no defendant?
But his curiosity was piqued at this point. What were Kavano and this Scalito woman playing at?
Meyersota gavelled. “I declare court to be in recess. Would Mr. Kavano and Ms. Scalito attend to me in chambers? He glanced around. “Is there a defense attorney here? Or is he as real as his client?”
Kavano winced. “I’m presenting arguments for the defense.”
“You’re…” Meyersota actually gasped. “Am I to understand you are prosecuting and defending attorney…erm, attorneys in this travesty?” Kavano nodded, clearly wishing to put his Bible between him and his view of Meyersota’s face. Meyersota was wearing a well-practiced expression designed to melt certain grades of titanium.
* * *
“All right. Siddown.” Meyersota normally offered a choice of sweets and non-alcoholic libations in chambers discussions, hoping to promote a sense of collegiality amongst warring factions. But this was unknown territory, and Meyersota was wondering if Kavano was pranking him in some way. Misdirected humor in court was sometimes a career-ender. No sweets for you, Mr. Kavano. Not until I know what the hell this is.
“Now, explain to me how this is even remotely a proper court proceeding with no defendant.”
“303 Creative v. Elenis, your honor. Just came out this week. The ruling says that an artist may not be compelled to write or portray actions or images that he or she finds objectionable.”
“303 Creative…wait a minute. It that the case where some woman sued over the right to not have to violate her religious principles and write a message on a wedding cake for a gay couple?” Meyersota paused to recollect. “It turned out that the party she named as opponent in the suit in fact wasn’t gay, was married for many years to a woman, still was, and had no intention of marrying anyone else? In fact, it turned out that he had never approached that woman and asked her to perform any service at all for him? She just picked his name out of a phone book or something?”
Kavano nodded. Meyersota looked aghast. “And the Supreme Court ACCEPTED that mess?”
“And ruled on it, your honor.” Kavano opened his bible and pulled out a sheath of papers. “It says here, ‘Ms. Smith and the State stipulated to a number of facts: Ms. Smith is “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender” and “will gladly create custom graphics and websites” for clients of any sexual orientation; she will not produce content that “contradicts biblical truth” regardless of who orders it; Ms. Smith’s belief that marriage is a union between one man and one woman is a sincerely held conviction; Ms. Smith provides design services that are “expressive” and her “original, customized” creations “contribut[e] to the overall message” her business conveys “through the websites” it creates; the wedding websites she plans to create “will be expressive in nature,” will be “customized and tailored” through close collaboration with individual couples, and will “express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage; viewers of Ms. Smith’s websites “will know that the websites are her original artwork.”
“Hmph. Well, it is stare decisis that the First Amendment forbids the government from compelling people to say something that they would rather not say. But that’s an action taken by the government. Was your suppositional defendant a government?”
“The situation we’re stipulating is that the plaintiff, Ms. Scalito caters party functions. She is moving to prevent having to cater events which she finds objectionable.”
“’Objectionable.’ You mean like stag parties, or…I don’t know, frat parties where there’s underage drinking going on?”
Scalito spoke up. “I mean heathen events. Bar Mitzvahs, Arab weddings, that sort of thing.”
Meyersota had tried some extremely distasteful people in his day, and was well-versed in maintaining an impartial mien. He had also learned to hear a person out, no matter how unpromising the start. But Scalito was already trying his patience.
“Mr. Kavano, you might advise your client that the law forbids discriminatory practices against those in protected classes. This includes religious beliefs.” Meyersota glanced at the Bible Kavano was still holding. “ALL religious beliefs. I’m a practicing Christian myself, but generally do not permit holy texts and artifacts in my courtroom other than in an evidentiary role. Is that Bible you’re waving around evidence of some sort?”
Kavano glanced at the bible as if it had come to life and was wriggling in his hands. He stuffed it into his briefcase, giving Scalito a dark glance. She made him carry it, Meyersota realized. This was getting weirder by the moment.
Scalito gave Kavano a disgusted look and spoke up. “I have nothing against Arabs, your honor, and some of my best friends are Jews. But I am an artiste, and I feel that if I am forced to engage in thematic imagery or wording as part of my catering services, people might think that I personally am Jewish or Muslim, and as a devout Christian, I wish to be spared that.”
Meyersota gave Scalito a level stare. “That seems a bit far-fetched, Ms. Scalito. Take me, for example. I wrote lesson plans and essays as part of my role as an adjunct professor at the local college. I wrote a piece that laid out the groundwork for the findings for legal action against the police whose African American prisoner died in custody last summer. I argued that the prisoner in question was entitled to the full rights of any white prisoner and might still be alive had he been treated the same as a white prisoner.
“Does that mean people will think I am African American? And for that matter, should I care if some people get that impression? There is no shame intrinsically in being African American, just as there is nothing shameful about being Jewish or Islamic.”
“But I have a right as a Christian to not be lumped in with those other religions. They are false!”
Kavano spoke up. “Your honor, my client isn’t asking for the right to discriminate. She is asking, under the provisions set out in Creative 303, to be permitted to avoid serving customers so that she can avoid having to be discriminatory.”
Avoid being discriminatory. Yeesh. Meyersota had heard enough. “I don’t see grounds for a trial, or any sort of legal proceeding here. You don’t have a plaintiff because nobody has been wronged. You don’t have a defendant. The argument that a client may discriminate in order to avoid having to discriminate is absurd on its face. Come back when you have something that fits in the framework of law, or even common sense, and we can proceed.
“Now get out of my courtroom.”