Welcome to the Libertarian Podcast from the Hoover Institution.

I'm your host Tom Church, and I'm here with the Libertarian Professor Richard Epstein.

Richard is the Peter and Kirsten Bedford Senior Fellow here at the Hoover Institution.

He is the Lawrence A Tish Professor of Law at

NYU and is a senior lecturer at the University of Chicago. Richard this week you've

written about a case called 303 Creative versus Alanis decided by the 10th Circuit.

It's a case that you actually signed an amicus brief about because the Supreme Court is going to look at the case.

It involves Lori Smith, a website designer in Colorado who is seeking preemptive

protection from possible sanctions from Colorado's Anti Discrimination Act. And she's doing this because she's a devout Christian who will make

websites for anyone but has decided not to do that for gay couples, specifically for a wedding

websites. Now, how is this different from the masterpiece Cake Shop

Supreme Court case that's already been decided and looked into, I think, a very

similar issue? Oh, well, it turns out in terms of its basic factual pattern, I don't think there's much difference on the ultimate issue, but there's a huge difference with respect to the way in which the record is organized and the way in which the case will be decided.

In the masterpiece case, what happened is there was a charge that was actually brought against Jack Phillips,

and there were a bunch of hearings.

And in the course of those hearings, one of the commissioners sort of announced that people like you were responsible for the Holocaust and religion is the opiate of the people or something worse. And so when it was decided by the court, there were a lot of splits of opinion one way or another. But the record said we're not going to allow it to go in this particular case because there was the monetary sign of bias and incorrect attitudes that were done in the hearing.

And so we're going to remove the case and send it back for remand, that is to be re-heard.

In this case, it turned out that Ms. Smith did not want to have to go through that kind of a hearing.

And so what she did is she brought a preemptive action which you're allowed to do generally speaking,

in which you say, I think I'm under danger of prosecution in a future case on this.

And I want a declaratory judgment because I don't want to have to be put to the very painful choice of having to decide to abandon my faith or in fact to go into this thing and then face legal sanctions of both a monetary and a personal nature. So why I want this cleared up?

The Colorado Commission tried to defend on the grounds that she didn't have standing saying better to wait for this to happen it may or may not happen.

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