December 6, 2022

Wedding Websites Case

The Supreme Court heard oral argument on Monday in the case of Lorie Smith, a website designer and devout Christian who wants to expand her business to include wedding websites – but only for opposite-sex couples. Smith is challenging a Colorado law that prohibits most businesses from discriminating against LGBTQ customers. Requiring her to create websites for same-sex weddings, she argues, would violate her right to freedom of speech.” SCOTUSblog

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From the Left

The left worries the Court will rule in favor of Smith and weaken anti-discrimination laws.

“If certain businesses are exempt from civil rights laws because they make products that require a spark of creativity, then it is far from clear which businesses should still be required to follow the law — after all, lots of jobs require at least some artistry

“As Justice Elena Kagan noted during oral arguments in Masterpiece Cakeshop, if cake bakers qualify as ‘artists’ who can defy civil rights laws, then what about jewelers? Or hairstylists? Or makeup artists? What about a conservative Christian restaurateur who claims that their food is an expression of their most sincere religious values, and therefore must not be served to gay customers?”

Ian Millhiser, Vox

“Potentially, any such company hostile to gays or lesbians could argue that taking their picture or printing an invitation or acting as their lawyer or agent or counselor would express approval of homosexuality… Because no constitutional right is absolute, even a pure free speech claim requires that the government cannot justify the challenged law by pointing to a really compelling need for it. In this case, the compelling need is obvious: to end discrimination against gay and lesbian couples in public spaces.”

Caroline Mala Corbin, NBC News Think

“No artist has to open a business to the public in the first place. Most writers, painters and other artists never do; they pick their subjects and leave it at that. The photographer Annie Leibovitz, for example, does not offer to take photographs of anyone who offers to pay her fee but chooses her subjects. She is perfectly free to photograph only white people or only Buddhists…  

“But if Ms. Leibovitz were to open a portrait photography business that offered to take portraits on a first-come, first-served basis to the public at large, as many corporate photography studios do, she could not turn away subjects just because they were Black or Christian…

“The First Amendment does not give [303 Creative] an exemption from laws requiring equal treatment of customers simply because its service is ‘expressive.’ Otherwise, interior decorators, landscape architects, tattoo parlors, sign painters and beauty salons, among countless other businesses whose services contain some expressive element, would all be free to hang out signs refusing to serve Muslims, women, the disabled, African Americans or any other group. The First Amendment protects the right to have and express bigoted views, but it doesn’t give businesses a license to discriminate.”

David Cole, New York Times

From the Right

The right urges the Court to rule in favor of Smith in order to protect free speech.

The right urges the Court to rule in favor of Smith in order to protect free speech.

“As Justice Neil Gorsuch put it, the fundamental question of this case is not a who, but a what. Smith, a graphic designer and the owner of 303 Creative, does not object to serving LGBT clients and has said she would be more than happy to create a custom website for them — as long as that website does not convey a message with which she disagrees… Smith is not refusing the customer, she is refusing the message…

“Smith would object to creating a website celebrating same-sex marriage regardless of who asked for it. Straight, gay, bi, black, white — it doesn’t matter. She doesn’t believe in same-sex marriage and doesn’t want to be forced to use her creative expression to participate in it, for the same reason that a pro-choice photographer might not want to use her talents to take pictures of the pro-life cause, or a Democratic speechwriter might not want to create messaging for a Republican candidate.”

Kaylee McGhee White, Washington Examiner

“[Should the state] 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…

“If we want a diverse and open society… one side of the cultural divide can’t be empowered to crush the economic lives of anyone who dissents. There are thousands of businesses that will bake the cake or create the website. Public-accommodation laws were meant to stop discrimination against minorities, not compel minorities to promote the political and theological positions of the majority.”

David Harsanyi, The Federalist

“What’s remarkable about today’s culture wars over wedding cakes and websites is that the freedom Mr. Phillips and Ms. Smith want seems modest next to other liberties that the U.S. has historically granted. In 1943, with Hitler on the march, the Supreme Court said schools couldn’t make the children of Jehovah’s Witnesses salute the U.S. flag. At the same time, the country defended itself while accommodating pacifists like Quakers and Brethren…

“Ms. Smith only wants to sell websites. Unlike physical public accommodations, such as hotels and restaurants, there is no captive market on the internet. Coloradans can choose from countless different website designers, most of whom will happily serve gay weddings. So why can’t the law leave Lorie Smith alone?”

Editorial Board, Wall Street Journal

A libertarian's take

“I’ve been writing in favor of gay marriage since 1995. My organization, the Cato Institute, filed more than a dozen legal briefs in support of marriage equality on the way to the Supreme Court’s Obergefell v. Hodges decision in 2015. So I’m a firm supporter of equal marriage rights. But it is also important to defend the rights of small businesspeople who don’t want to participate in a gay wedding by providing services such as designing a cake, a website, or floral decorations…

“In his essay ‘Live Not by Lies,’ Alexander Solzhenitsyn wrote that each person must never ‘write, sign or print in any way a single phrase which in his opinion distorts the truth,’ never ‘take into hand nor raise into the air a poster or slogan which he does not completely accept,’ and never ‘depict, foster or broadcast a single idea which he can see is false or a distortion of the truth, whether it be in painting, sculpture, photography, technical science or music.’ He urged that course on citizens of a totalitarian dictatorship. Can we ask less of citizens in a free society?”
David Boaz, The Hill

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