Should a public accommodation law be allowed to compel a business owner to produce messages that violate their personal beliefs, thereby violating their First Amendment rights? That is a legal question that was presented to the United States Supreme Court in the case 303 Creative LLC v. Elenis. Lorie Smith runs a graphic designing company in Colorado called 303 Creative. She objects to same-sex marriage on religious grounds and would rather not host sites for same-sex weddings. The issue is that Colorado's anti-discrimination law prohibits discrimination against LGBT customers. What the Supreme Court is going to determine is whether Smith's First Amendment rights are being violated by Colorado's anti-discrimination law.
In spite of such cases as Masterpiece Cakeshop v. Colorado Civil Rights Commission and Fulton v. Philadelphia, the Supreme Court has avoided the question of whether public accommodation laws can compel business owners to provide services for marriage ceremonies that go against their religious or moral beliefs. Hopefully, the case of 303 Creative LLC v. Elenis will settle the question.
Yes, it is true that I have supported same-sex marriage for a number of years. It is also true that I hope that the Court rules in favor of Lorie Smith because Colorado made a misstep. My condensed argument today will be similar to the argument I made during the Masterpiece Cakeshop case in 2017.
First, this case is not about eliminating anti-discrimination laws. In 2020, the Supreme Court already decided in Bostock v. Clayton County that the anti-discrimination protections of the Civil Rights Act of 1964 apply to LGBT individuals. A ruling in Smith's favor would have no bearing on same-sex marriage, same-sex adoption, or anti-discrimination laws in the workplace. Legally, this is about whether commercial entities should be compelled in speech that the owner finds morally objectionable.
Second, the argument for compelling services for someone or something objectionable cuts both ways. Would it be acceptable to compel an Orthodox Jewish caterer to cater non-kosher food for a neo-Nazi event? What about forcing an African-American woodcutter to create a cross for a KKK rally? Can a Left-leaning freelance speechwriter be obligated to write a campaign speech for a Republican candidate? And what about obliging an atheist web designer to design a website for religious ceremonies that they find problematic?
I do not agree with Lorie Smith's views on same-sex marriage, but I defend her right to express her own ideas and to refuse to express an idea she disagrees with. This case is about rights related to "freedom of association, property, privacy, and religious exercise." If we are to live in a free society, all commercial entities should be allowed to choose who their clients are or how their services should be rendered.
Third, we live in a time where same-sex marriage is accepted by most Americans. As of June 2022, Gallup found that 71 percent of Americans support same-sex marriage. That is significantly higher than the 27 percent of support back in 1996. I am sure that among that 71 percent is at least one web designer that would have been happy to take the business away from Lorie Smith and make a profit off of the same-sex wedding page. Also, if the issue of same-sex marriage is that important to a gay couple, why would that gay couple want to hire someone who is opposed to their right to get married?
While this does not get into the purview of the case itself, my fourth issue is that anti-discrimination laws are an example of hazardous policy masquerading as good intentions. Trying to chase such an unobtainable goal comes with the an issue of government taking remedial action. To quote University of Chicago law professor Todd Henderson:
There is no natural limit to the scope of anti-discrimination laws because the concept of anti-discrimination is almost infinitely malleable. To concede the general power of government to redress private discrimination through legislation would be to concede virtually unlimited power to the government.
With terms to race relations, it was government who enacted such policy as the Jim Crow laws, Plessy v. Ferguson, and redlining. It was the government who defined marriage between a man and a woman instead of allowing for consenting adults to enter into whatever contracts and relationships that they wished. When I explained in 2013 why anti-discrimination laws will not help out the LGBT community, I pointed out that politics does not lead the social change, but rather follows it.
We cannot legislate our way towards acceptance. Anyone who thinks the government can use anti-discrimination laws to create some utopian world without racism or bigotry is misguided. Nothing can deliver utopia because human beings are imperfect by their very nature. We still do not have 100 percent of people who approve of interracial marriage. Gallup puts that figure at 94 percent. It is a significant improvement from the 4 percent approval rate in 1961, but it still not 100 percent. Approval of same-sex marriage is not at 100 percent, but at least same-sex marriage is legal and most LGBT individuals do not feel the need to hide in the closet.
While the Supreme Court determines the First Amendment implications as they pertain to freedom of speech, I think there is something even more essential at stake: freedom of association. Freedom of association allows for humans to interact with whom we want and is integral for pursuing our dreams and goals. A free, democratic society cannot eliminate discrimination because freedom of association implies a right to discriminate against others.
It is a private business owner's right to choose with whom they should do business, much like it should be our individual choice who our friends are. If you really do not like the fact that a Christian web designer believes that same-sex marriage is a sin, find a web designer who supports same-sex marriage or does not care what two consenting adults do. Anyone who wants to trade in liberty for the appearance of a non-bigoted world is really only going in for a quick, illusory fix that will not produce a free, cooperative society.
Much like I pointed out over seven years ago when discussing anti-discrimination laws, "your freedom of religion ends where another's freedom of religion begins." Lorie Smith has the freedom of conscience and freedom of religion to believe that same-sex marriage is a sin. She also has the right to refuse business that violates her moral conscience and her First Amendment rights. However, those beliefs do not provide the basis or the right to deny same-sex couples such rights as the right to get married or the right to adopt children. Part of living in a democratic, pluralistic society means that everyone is not going to think, speak, or act the way you do. Whether it is the Religious Right or the woke Left, it is unacceptable to use the government to force everyone everywhere to act the way that they want. By ruling in favor of Lorie Smith, the Supreme Court would preserve freedoms that we should all hold dear.
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