Supreme Court leans toward web designer with anti-gay marriage stance
reuters.com
reuters.com
Obviously, it gets murky when it comes to innate characteristics like race…but I don’t think religious views fall under that category because a considerable number of people change their religions or go from religious to atheist or vice versa.
Should someone be forced to officiate a same-sex wedding or build a website is different from should that person be forced to rent an apartment to a same sex couple which is different from should a cashier be forced to provide service at the register to a same-sex couple.
The law provides distinction between speech and conduct, and that’s the main topic in this court case. Conduct can’t discriminate, but speech can. Eg. You can say mean things about a certain race, but you can’t refuse them service because if it. So professional services… is that conduct or speech? The Colorado law in question said that business is conduct not speech, and thats really what is at the root of this case. What is the line? Is baking a cake speech? Is building a website? What about being a grocery store cashier?
> Obviously, it gets murky when it comes to innate characteristics like race
What about innate characteristics like sexuality?
- Alice wants to publish a website about how the moon is made out of cheese but Alice is bad at web design.
- Bob is good at web design and wants to sell his design services.
- Bob is discriminatory in how clients are accepted: he doesn't want people to make claims that the moon is made out of cheese.
- Alice is rejected.
I don't think Bob is really wrong in this hypothetical specifically because people who believe certain things about the moon aren't a class protected by law from discrimination.
However, when Alice is trying to make a website about her marriage to her future wife:
- Bob is discriminatory in how clients are accepted: he doesn't want people to announce or advertise their same-sex marriages.
Seems like this is discrimination against a protected class. Personally, I don't buy the argument that Bob's speech is compelled because it's not his speech (not his website).
(Not that the above comment makes this argument, just that it appears to be the prevailing argument in favor of this person's decision.)
The other nuance is the Colorado recognizes this protected class but not the federal government (or Supreme Court).
> Personally, I don't buy the argument that Bob's speech is compelled
What about if bob was gay and Alice was working for an anti-gay Church? If I was bob I wouldn’t want to participate in such business.
This is a good point that I should have considered more. (Not that it really matters but I do try to catch my biases before expressing them.) I was thinking about this more yesterday and this morning and eventually reversed my conclusion because of this argument.
That's the great thing about being in the majority. Most people share your opinion.
Not all that long ago, almost nobody wanted to render services to same-sex couples. The only reason the level of blatant discrimination has (slightly) lessened is because laws were enacted that explicitly protected their rights.
As someone (referring to myself here) who has almost no reason to be discriminated against, it's very easy to imagine that allowing business owners to freely choose who they provide services would be ok. I'd imagine the reality of that scenario would be pretty grim however.
The problem with this line of thought (and why we have laws to help protected individuals) is that it hurts a minority of people and imposes a tyranny of the majority. Christians will likely never have to worry about an Atheist shop telling them to pound sand, but an Atheist in a rural area could suddenly have services taken away from them unless they convert.
In this scenario they had the freedom to deny the job and move on; but they wanted to specifically make it about their religion. They want the ability to discriminate not on the basis of being picky with their clientel, but specifically so that they can impose their own religious beliefs on others. And that is the core problem of the case; and also why I sadly think the Supreme Court will rule in favor.
This would never affect the ability to buy groceries or receive medical care.
I shouldn't have to lookup which minorities/protected classes your public business refuses to serve.
Easy to stand with her when you're not on the receiving end of that discrimination.
We have a long history of having gays not being a protected class, so you can see from ten years ago how realistic your concerns are.
And the court isn't considering whether LGBTQIA+ people fall into a protected class category, that's not this case. Metaphorically, this case is whether or not she can put up a sign on her business's front door that says "No ___ allowed." And according to the article, this conservative SCOTUS appears to be sympathetic to the "No ___ allowed" sign.
It appears SCOTUS is trying to draw line between public accommodation businesses and businesses that create speech, a distinction I believe Justice Sotomayor and KBJ countered aptly.
I could imagine an ISP denying the use of its networks to LGBTQIA+ people because they have sincerely held religious objections to transmit those customers' data across their network.
I understand wanting to make the distinction between objectionable behavior and the intrinsic characteristics of clients. But that's not a distinction the Colorado law considers. And if stuck down, SCOTUS could establish that there would be nothing baring a business to refuse service to LGBTQIA+ dog walkers.
> Smith explains that she decides whether to take on a commission based on the message that the work will convey, rather than the person requesting it. This means, she says, that she would “happily” design graphics for an LGBTQ customer who runs an animal shelter. But she will not take on commissions that would be inconsistent with her Christian beliefs – including, she says, by promoting same-sex marriage – because a custom wedding website would “express approval of the couple’s marriage.”
> Smith warns that allowing the 10th Circuit’s ruling to stand would mean that artists will be required to engage in speech that violates their conscience. Calligraphers who support abortion rights can be compelled to create flyers for anti-abortion activists, she says, and musicians who are atheists can be required to perform at religious ceremonies.
https://www.scotusblog.com/2022/12/colorado-web-designers-fi...
So, it does not have to do with any business, as you claim, but one which is hired to produce certain speech.
I have a practical interest in finding solutions to difficult moral problems.)
--
Clearly people shouldn't be discriminated against for the protected class they are in.
And yet people shouldn't be required to harness their own free speech for views that they find morally objectionable.
I don't see how any workable solution can dispense with either of those principles.
But I don't see any contradiction either. No discrimination based on customer class. But allowable service limits, on providing unique creative contributions to promoting ideas the supplier finds morally objectionable.
--
The distinction is between mechanical services, creative non-speech related services (always must be provided equally) vs. creative service directly involved in speech choices.
--
A cake maker should provide cakes to anyone. Put any combination of figures for sale on a cake, as a customer requests. Put any writing a customer wants on a cake. And even produce cakes in designs inherently celebrating any ideas, supporting the free speech of the customer.
None of those tasks involve the cake supplier making creative choices about any ideas. The customer made those choices.
But a cake maker can decline to come up with their own wording for phrases supporting ideas they don't agree with. And decline to make choices regarding unique visual designs, specifically promoting an idea they find morally objectionable.
So a gay couple should be able to get a unique cake made (from a maker of custom cakes), with rainbow colors (they chose), in a shape of a non-binary symbol (that they chose), with two male figures on top (at their direction). And the cake maker can be expected to apply their general creative calligraphy and cake shaping skills to make the cake presentable, without having to make any decisions about the ideas it represents that they may or may not have personal moral objections too.
--
The only other aspect I can think of is, suppliers should generally be able to decline projects for moral reasons, as long as the moral objection isn't based on protected class of customer.
For instance, a request for a cake in the shape of genetalia can be rejected for being too obscene, given they would decline such a cake for anyone of any class.
I think divisive political or social messages would fall under the providers right to decline based on personal morals, that don't involve making distinctions dependent on a protected customer class.
But it would be a problem if the cake maker was ok making very divisive cakes favorable to white supremacists, but then refused to make similarly divisive cakes associated with other races or religions. As that inconsistency would indicate the supplier was making distinctions based on protected classes (i.e. religion, race).
A cake maker is fully within their rights to refuse to make blue cake, if they don't like blue, for example.
I know little of this case. She preemptively did this without a specific incident? How did this even make it to the SCOTUS? I feel anyone can refuse to work for someone else on any unsaid basis. It's when it is definable why they denied a customer, or work, then we can explore the implications.
Preemptive fears are baseless in this circumstance, IMO.
This applies in many cases across many fields. Like in Australia we recently had a kerfuffle in which the National women’s netball team protested a particular sponsorship (on pretty stupid grounds, but anyway…). Why not accept the sponsorship but say your piece? Constructive debate is much better than virtue signalling.
=== https://en.wikipedia.org/wiki/303_Creative_LLC_v._Elenis ===
Before implementing the notice, Smith discovered that such a notice would violate the Colorado anti-discrimination state laws that were amended in 2008, which prevents public businesses from discriminating against gay people as well as making statements to that effect. Smith, represented by the Alliance Defending Freedom, sued Colorado in 2016 in the United States District Court for the District of Colorado, seeking to block enforcement of the anti-discrimination law. The district court waited for the result of the Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission which dealt with the same anti-discrimination law. As Masterpiece was ruled in 2018 on more narrow procedural grounds, the district court ruled against Smith in 2019, as Colorado had yet to investigate Smith and thus there was no evidence that she had engaged in discrimination.[4][5]
Smith appealed to the United States Court of Appeals for the Tenth Circuit, which upheld the district court decision in a 2–1 ruling. In the majority ruling, the Tenth Circuit held the anti-discrimination law satisfied strict scrutiny under the First Amendment to the United States Constitution, deepening a circuit split with decisions issued by the Arizona Supreme Court and the United States Court of Appeals for the Eighth Circuit.[6] Chief Judge Timothy Tymkovich dissented in the Tenth's decision, writing "the majority takes the remarkable — and novel — stance that the government may force Ms. Smith to produce messages that violate her conscience."[3]
https://www.uscourts.gov/about-federal-courts/educational-re...
In this case, it seems like they lost twice at the lower levels, but got the Supreme Court to hear the appeal possibly because of the circuit split mentioned on Wikipedia, which indicates that two different circuits have come to different legal opinions on a matter. This is one of the things somewhat likely to attract the Supreme Court's attention to a case, since they can set a precedent to decide who was right and make the application of the law a bit more uniform.
Is web design considered a public accommodation under the law?
any reason why it wouldn't?
E.g. should a Jewish singer be forced to sing at a KKK event, etc.
How far does religious belief and freedom of religion take us?
This proves its about “speech” - plug-and-play is hardly the same level of speech as a unique design. More-specifically, there is a difference, legally, between “conduct” and “speech”. Eg. You can say discriminatory things, but you cannot do discriminatory things. So the question at hand.. what if you discriminate what you do, to avoid being compelled to say something you don’t want to.
A Plug-and-play website might not pass the test when it comes to being “speech” the way unique artistic graphic might.
But you still have to register, and I can imagine someone objecting even to that, someone Amish, say. They object to going to high school.
This case is only going to modify the Colorado statute, and maybe others
It likely won’t answer all your questions
But in America if you have a little free time and money you can mold the country by bringing these cases, instead of just imagining them at your keyboard
Dont let your dreams be dreams, or your slippery slopes hypothetical
Also, SCOTUS and other federal courts frequently do rule in favor of religious rights regardless of whether the person asserting them is Christian.
Not always, but it's not like they conspicuously don't.