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Evans misled by article about the 303 Creative case

3/21/2023

Randy Evans, who is usually a defender of the First Amendment, has been misled by a New York Times article, written by David Cole, the national legal director of the American Civil Liberties Union, about the 303 Creative case, now under consideration by the Supreme Court. Evans correctly notes that Lorie Smith, “a devout Christian, builds websites for customers. She wants to expand her business [303 Creative] and begin building websites for couples who are planning weddings. But she is adamant that she does not want to be forced to build websites for same-sex couples. Doing so, she says, would violate her faith, which does not allow her to celebrate same-sex marriages.” 

Lorrie Smith is challenging Colorado’s anti-discrimination laws which outlaw her refusal to provide such a service.

Evan’s article, “We Could Fall on This Slippery Slope” comes to the erroneous conclusion that the case could open the door to discrimination against gays, Blacks, etc. by any business with “expressive” goods or services, including, for Pete’s sake, hair dressers and movie theaters. But the case is not about raw denial of all services to gays or any other group, but about being forced to express a pro-gay marriage message that violates the business owner’s religious beliefs. How would a hairstyle communicate such a message? Nor is denial of admission to a theater an appropriate comparison. For the government to demand that a theater show “Brokeback Mountain” or another pro-gay movie that violates the theater owner’s beliefs would be a far more appropriate comparison to the 303 Creative case. It is self-evident that such compelled speech would violate the First Amendment.

The key question here is, “Can the government, consistent with the First Amendment, put a legal gun to the head of an individual engaged in expressive conduct, such as a speech writer or web designer, and compel them to express support for ideas with which they disagree?”

I would strongly recommend that Mr. Evans read the rebuttal to Cole’s article written by David Harsanyi, a senior editor at The Federalist in Real Clear Politics. The article is entitled, “The Future of the First Amendment Hinges on the 303 Creative SCOTUS Case.” Harsanyi notes that Justice Sotomayor’s proposition, that a victory for 303 Creative “would allow a business to refuse to serve a customer based on race, sex, religion or sexual orientation” is “the lie at the heart of the debate.”

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Harsanyi finds that Lorie Smith never “turned away any customer because of an immutable characteristic or sexual preference or religious belief. Rather, [she] refused to create a message that conflicted with sincere convictions. If a straight cousin of a groom asked for a same-sex wedding site, Smith would have turned that person away, as well. If a gay customer wanted a website for his business, Smith would have created it. If a straight couple asked for a bawdy website or a website that declared Xenu the one true Lord of the universe, they too would have been rejected, because that idea also runs afoul of her evangelical Christian beliefs.”

Harsanyi asks if the ACLU would “call for the state to intervene in the case of an evangelical customer who wants to compel a gay designer to create a website for an organization that works to overturn same-sex marriage laws or preaches that acts of homosexuality are a mortal sin? Christians, after all, are also a protected group under anti-discrimination laws. The answer is: highly unlikely.”

Indeed, in oral argument both the deputy solicitor general of the United States and the solicitor general for Colorado suggested that religion is not a protected class and that a gay web designer would be free to reject creating an anti-gay marriage website if he chose to do so.   

The best answer, of course, is that neither the Christian web designer nor the gay web designer can be compelled by the government to engage in speech with which they disagree. The ACLU and Evans have forgotten that, no matter how much the government detests certain speech, or how much it wishes to compel the holder of objectionable views to express opposite ones, the First Amendment, as Justice William O. Douglas pointed out long ago, “protects the thought we hate” from government interference. 

–Donald W. Bohlken, Indianola

 

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