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Stray Thoughts

If we aren’t careful, we could fall on this slippery slope

12/12/2022

Few people like being told what they must do. Lorie Smith is one of them.

The suburban Denver, Colo., business owner, a devout Christian, builds websites for customers. She wants to expand her business 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.

For more than an hour last week, the U.S. Supreme Court listened to arguments for and against the position staked out by Smith, the proprietor of 303 Creative LLC. The court’s decision is not expected until sometime in the first half of 2023.

An old attorney friend once made the memorable legal observation, “I never had a client listen himself into trouble, but I’ve had many who talked themselves into trouble.” He also reminded me that only a fool predicts how judges or juries will decide a case.

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That wisdom also applies to predicting a U.S. Supreme Court decision. But it does not take a wizard to foresee that the 303 Creative case presents the justices with a legal slippery slope if they rule in favor of Lorie Smith.

The court has the potential to drag our country back 75 years, before Congress and the courts made it clear there is no place for discrimination in the United States.

David Cole, legal director for the American Civil Liberties Union, told the New York Times recently, “If 303 Creative wins here, we will live in a world in which any business that has an expressive service can put up a sign that says ‘Women Not Served, Jews Not Served, Black People Not Served,’ and claim a First Amendment right to do so.”

He added, “I don’t think any of us what to live in that world, and I don’t think the First Amendment requires us to live in that world.”

In a “friend of the court” brief to the Supreme Court, the ACLU defended Colorado’s anti-discrimination law. Cole described the contours of the potential slippery slope this way: “If 303 Creative is correct, could a bakery that opposed celebrating black families refuse to sell a birthday cake to a black mother? Could an architecture firm that serves the public refuse to design homes for Muslims because it opposes their religion? Could a test preparation business that objected to the number of Asians in elite colleges turn away Asian students? Could a restauranteur opposed to ‘mixed marriage’ put up a sign in its window saying ‘No inter-racial or inter-faith couples served’?”

The creative process involved in building websites does not excuse Lorie Smith from complying with the Colorado law. Likewise, other businesses with “expressive” goods and services are not allowed to discriminate in their sales to the public, either — not theaters, jewelry design shops, hair salons, interior decorators, landscape design companies or similar businesses.

And therein is the problem Smith creates by asserting that her First Amendment, free-speech right allows her to refuse to serve certain customers who knock on the door of her design business. Colorado’s anti-discrimination law does not require her to post signs in support of same-sex marriage. It only requires her to build websites for all couples planning weddings, regardless of a couple’s gender or race.

Every state has similar anti-discrimination laws. In some states, these were a product of the turbulent 1950s and 1960s, when blacks were prohibited from attending schools with white students and when blacks could not sit in certain bus seats or eat at certain lunch counter seats. They could not use “Whites Only” drinking fountains or rest rooms.

By opening the door for businesses to serve some customers, but refuse others, the Supreme Court has the potential to take us back to those terrible times of government-sanctioned discrimination.

The ACLU legal brief illustrates the dilemma facing the Supreme Court by pointing to famed portrait photographer Annie Leibovitz. She does not offer her photo services to the public at large. Instead, she picks and chooses her subjects.

By contrast, JCPenney Portrait Studios welcomes any member of the public to sit for portraits. But the studios cannot refuse to take photos of customers because they are female or male, Jewish or Catholic, black or Asian, heterosexual or gay.

The brief offers another example to help the justices grasp the issue. Under the Colorado law, a store that sells Christmas ornaments need not sell Hanukkah products. But such a store could not refuse to sell its Christmas ornaments to Jewish customers.

The ACLU said 303 Creative cannot get around the law’s requirement by describing its service as “website design for opposite-sex weddings” — just as it could not offer “website design for white people’s weddings.”

The ACLU added, “If a business has to know who a service is for to decide whether to sell it, its decision is not about the content of the product, but about the identity of the customer.”

That goes against what is right and proper.♦

Randy Evans can be reached at DMRevans2810@gmail.com.

One Comment

  1. Donald W. Bohlken says:

    To the editor:

    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 hair style 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.”

    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.

    Sincerely,

    Donald W. Bohlken

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