Not Cakes, But Advocacy: The Tenth Circuit Rules That Compelled Expression Is Constitutional

compelled speech

I will state up front that I am confident that this decision will get to the U.S. Supreme Court, and that if and when it does, it will be reversed.

The 10th U.S. Circuit Court of Appeals at Denver ruled 2-1 that website designer Lorie Smith and her company, 303 Creative, violated a Colorado law by refusing to create a website celebrating a same sex union. forin a lawsuit filed before the law was used against her. She was represented by Alliance Defending Freedom, a conservative Christian nonprofit, who also represented Christian baker Jack Phillips, who refused to bake a cake for a same-sex wedding. There is a material difference, however, between a cake and a website. A cake is not generally thought of as expression, and there is a colorable argument that a bakery is a public accommodation. But Smith, whose company designs wedding websites, argues that forcing her to make one that supports a same-sex marriage violates her religious beliefs. It isn’t frosting and cake shades at issue, it’s words.

A Colorado public accommodation law bars public accommodations from refusing to provide equal access to services because of sexual orientation. The law’s communication clause also says public accommodations cannot publish any communication indicating that full access to services will not be provided because of sexual orientation. The appeals court majority decreed that neither provision violates Smith’s free speech and free exercise rights under the First Amendment, even though it acknowledged that Smith’s websites are pure speech that involve her unique creative talents. But, the Court claims, indulging in an “its isn’t what it is” rationalization, Colorado “has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace…We agree with the dissent that a diversity of faiths and religious exercise, including appellants’, ‘enriches’ our society…Yet a faith that enriches society in one way might also damage society in other ways, particularly when that faith would exclude others from unique goods or services.”

This opinion is way, way over the traditional judicially-drawn line between compelling public accommodations to be equally accessible to all and compelling artistic expression. Under this theory, a singer who performs at weddings would have to warble at a same-sex ceremony, even if her faith held that such a ceremony was a sin.

The dissenter,Chief Judge Timothy Tymkovich, wrote persuasively that no previous case had claimed that the state has a compelling interest in forcing Smith to speak a government-approved message against her religious beliefs. “The majority takes the remarkable—and novel—stance that the government may force Ms. Smith to produce messages that violate her conscience,” he said. “It seems we have moved from ‘live and let live’ to ‘you can’t say that.'”

It seems to me that there is an easy solution for the web designer: just make a lousy website, and inform them that this is what they’ll get: “OK, but I can’t guarantee the quality of a product I am not inspired by. You take your chances.” If the clients are dissatisfied, fine: they can have their money back. The law might be able to make an artist serve a client (though I doubt it), but it can’t dictate the quality of the art. Enforcing contracts involving artistic performance has always excluded requiring the performer to perform for exactly this reason. That singer can sing off-key if she chooses, and it’s ethical if she warns those forcing her to sing.

Writes Prof Volokh in part: “(I co-filed an amicus brief on behalf of the Cato Institute, supporting the web site designer.) At first glance, this appears to be inconsistent with the Eighth Circuit’s decision in Telescope Media Group v. Lucero, which upheld videographers’ right not to create videos of same-sex weddings. I expect this circuit split will make this a good candidate for Supreme Court review—unlike Masterpiece Cakeshop, this case indubitably involves the creation of speech, and not just of a wedding cake, so it squarely tees up the compelled-creation-of-speech issue.”

Unlike my position in the Masterpiece Cakeshop controversy—“Oh, bake the damn cake!”— I see only one jerkish side in this one: the couple that deliberately sought out a website design company that made it known in its advertising that it wouldn’t make sites for same-sex weddings. Baking a cake for a wedding is not participating in the wedding. Making a website celebrating a wedding is directly endorsing it, and no one should be compelled to advocate, celebrate or endorse what they have a religious objection to. Contrary to the Tenth Circuit’s ruling, the state’s most compelling interest should be protecting individual rights.

34 thoughts on “Not Cakes, But Advocacy: The Tenth Circuit Rules That Compelled Expression Is Constitutional

  1. Baker, florist, now web designer! Who is next? Reading this article [https://www.christianpost.com/news/10th-circuit-rules-against-web-designer-challenging-lgbt-law.html ], and considering the inconsistent legal rulings, and the devastating expenses incurred even if you are ultimately “vindicated” for exercising your First Amendment right, I started to wonder how a “person of conscience” might continue to “take a stand” without confrontation or economic ruination.
    So, what if every personal service provider or small business owner simply disclosed on in-premises signage, website, and business documents (order forms, invoices, contracts, etc.) a “full disclosure” statement along the lines of my suggestion below? I’d welcome your thoughts, please and thanks!
    Would “good-faith” (i.e., not activists seeking confrontation and publicity, rather than just service/product) same-sex couples really want to patronize a business/service provider/vendor that really did not want to do business with them, and knowing that they (the same-sex couple) were actually directly subsidizing are organization that opposes their life style?
    Wouldn’t making this disclosure, then pleasantly providing the service, and then donating the profits/proceeds to an opposing organization, actually satisfy the service provider/vendor’s conscience and make an effective witness of one’s sincere and long-held moral and religious beliefs? In the Christian context, isn’t this “Rendering unto Caesar….?” Matt.22:21 In the current secular “tribal” context, at least everyone would know what tribe you are in!!!

    First Amendment Statement of Belief to Our Customers [Clients][Patients]
    XYZco is committed to providing top-quality [baking] [florist] [web design] [other___] creative services to all customers, consistent with our sincere and long-held moral and religious beliefs.
    We believe that all customers should have the freedom to select service providers/vendors whose sincere and long-held moral and religious beliefs are compatible with the customer’s own beliefs, and that the customer should not be compelled by the State, or otherwise, to patronize any specific vendor. Accordingly, we believe we should disclose our sincere and long-held moral and religious beliefs, for the benefit of those customers to whom such matters of faith and belief are important.
    We believe that [abortion] [same sex unions or “marriages”] [other___] are immoral and violate our [Christian] [Moslem] [Hindu] [other___] faith beliefs.
    Under threat of prosecution by the State or suit for “damages” by individuals, XYZco will fully comply, courteously and professionally of course, with all State mandates regulating the provision of our top-quality [baking] [florist] [web design] [other___] creative services to all customers, even though we believe that such compelled compliance may violate our own sincere and long-held moral and religious beliefs and First Amendment rights. Accordingly, all profits received by XYZco from the provision of our top-quality [baking] [florist] [web design] [other___] creative services which we believe to be inconsistent with our sincere and long-held moral and religious beliefs will be donated to [National Right to Life Committee https://www.nrlc.org/about/mission/, American Victims of Abortion, Teens for Life, and other outreach programs opposed to abortion] [National Organization for Marriage (NOM), a nonprofit organization with a mission to protect marriage and the faith communities that sustain it https://nationformarriage.org/about%5D.

    Keep up the good work at Ethics Alarms!
    Have a Nice Day!
    Hal Morlan

    • Outfits like the Human Rights Movement are implacable. These outfits have staff and money. They have to keep on keepin’ on. That’s what organizations do. They can’t just say, mission accomplished and fold up shop. They have lives of their own. What do you the whole trans thing is about. It’s the next battlefront in a never ending war.

    • No. Businesses should have to post something like that on their property. They should left alone by the fascists seeking force their compliance. Do you know what the most depressing sentence ever written in an English novel is? This: “He loved Big Brother.”

      jvb

    • On the face of it, making sure it’s known that all proceeds from certain items will be donated isn’t necessarily a bad idea. However, I can see all manner of shenanigans happening in which the business is flooded with requests for conscience-violating products in order to run it out of business due to the glut of donations. Remember, that there are plenty of people out there that just want to shut down anything that doesn’t comply with the New World Order.

  2. “The appeals court majority … acknowledged that Smith’s websites are pure speech that involve her unique creative talents.”

    Well that was a stupid mistake.

    I think there’s an argument that building a website is programming, it’s not speech. The customer can tell the programmer what they want the site to say and look like. I’m sure there are all sorts of standard issue elements that can be plugged into a program that builds wedding websites.

    I think there’s a definite, “Program the damned website” argument to be made here. But Jesus H. Christ, aren’t there tons of gay website designers out there? I could refer this couple to a second cousin of mine who’s gay and is a web designer. Sheesh. Grow up. You’ve won. Why do you care whether there are Christians out there who aren’t thrilled about gay marriage? Big deal.

    • I am a Christian that can be somewhat fundamentalist at times, but would have no problems baking a cake (although I wouldn’t write statements that I didn’t support) or making flower arrangements. However, making a website is a different issue. That requires actively creating written content that I would disagree with. Much like I wouldn’t expect a sign printing company to design and print large banners with swastikas saying “Kill All Jews.” This is not WIX.com that allows an individual to create their own content, this is a person creating written and visual content that they disagree with. That is where I think it crosses the line of the First Amendment, and I’m baffled why the 10th don’t see that also (other than extreme judicial activism).

      • Frankly, after watching my wife work on her cakes, fretting over every detail, I am inclined to believe that cakes, their design and creativity, are just as much art as anything else, only you can eat her paintings.

        jvb

    • “But Jesus H. Christ, aren’t there tons of gay website designers out there?”

      Sure there are. But, this isn’t about designing wedding cakes or wedding pictures or wedding websites or wedding announcements. It never has been and never will be. I completely disagree with Jack’s position that the service providers are unethical. They are being compelled to take action against their will. The unethical ones are the supposed customers innocently looking for service providers who clearly disagree with same sex marriage and use the courts to compel compliance with their position.

      I, frankly, am surprised that Jack would suggest that this is an ethical course: “OK, but I can’t guarantee the quality of a product I am not inspired by. You take your chances.” I can just see the weeping couple on TV telling tales of how awful the cake design was let alone the taste of sawdust in the breading.

      The ethical course for the business is to decline, get whacked by that totalitarians/fascists in the government and seek redress through the courts. And, they should stand firm against the onslaught of negative press because it will come and it will come fast and hard. These supposedly innocent aggrieved consumers have to no risk whatsoever; the businesses face financial and reputational destruction for standing on principle. And, yes, I do believe they should have the right to decline services. It is no small wonder that these supposedly innocent aggrieved consumers go after Christian businesses. Why don’t they try this with “Al Aqsa’s Wedding Cakes R Us”? Let’s see what happens if and when they do.

      jvb

  3. “Why do you care whether there are Christians out there who aren’t thrilled about gay marriage? Big deal.”

    It is a big deal to them because, as the dissenting judge alluded to, these groups have definitely moved from “live and let live’ to ‘we will not allow you to express disagreement with our choices or even hold an opposing view.” The elimination of the Christian perspective from our culture is what they want. The existence and perpetuation of of the Christian view of their “lifestyle” is unbearable to them, because it is a constant reminder that a greater authority than any man or court has already ruled and his verdicts are not amenable to appeal. Their desire is that no one be allowed to “live and let live.” In their minds, if one does not fully endorse and enable their choices, then he or she is not an “ally” and therefore has to be hounded, libeled, cancelled and sued into bankruptcy. I guess the conventional Christian doctrine is “literally killing them” since “hate speech is murder.”

    • Reminds me of the “Co-Exist” bumper sticker. Probably the stupidest bumper sticker in the history of stupid bumper stickers. Israelis are supposed to co-exist with their Iranian enemies whose stated national policy is to wipe Israel off the map and push Jews into the sea? How’s that going to work?

      • Speaking of pathetic Lefty futility, Kamala Harris has released her plan to address the root causes of illegal migration:

        Her five “to-do” steps to her four analysis points…. From Hot Air:

        Part one involves “addressing economic insecurity and inequality” in Central America. Part two, the administration said in a fact sheet Thursday morning, entails “combating corruption, strengthening democratic governance, and advancing the rule of law” in those countries.

        Part three focuses on “promoting respect for human rights, labor rights, and free press,” while part four addresses “countering and preventing violence, extortion, and other crimes perpetrated by criminal gangs, trafficking networks, and other organized criminal organizations.”

        Lastly, part five deals with “combating sexual, gender-based, and domestic violence.”

        From https://ussanews.com/News1/2021/07/29/kamalas-root-causes-plan-is-laughably-stupid/

        So neocons were lambasted for rying nation building in the Middle East but the Biden administration is going to solve all these problems (which they can’t cure in the United States as near as I can tell) in Central American shitholes? Imagine. You go girl! (What a nitwit.) Of course, fixing all these things in Mexico and Central America will be a piece of cake because there are no Republicans down there. Ta Dah! Why didn’t I think of that?

  4. I wonder how the Tenth Circuit’s rationale applies to a web designer who refuses to design an anti-gay web site for a Westboro Baptist or a militant Islamist.

    Is anyone under the impression that anti-discrimination laws are enforced in an even-handed manner?

  5. Has an architect who designed a building participated in its creation, even if he never set foot on the jobsite?  Should a Christian architect be compelled to design a new building for the United Church of Satan, with special accommodations for black mass?  Should a Christian baker then be compelled to design and create a cake for the opening rituals of that church, or better yet, a subsequent satanic wedding?

    Why or why not? 

    It seems disingenuous to posit that a baker has not “participated” in an event where he has created a custom product specifically for that individual event.  While one cake or another (or building, or website, for that matter) can be more or less fungible as to its performance in meeting the needs of a customer, it will also be unique to some degree.
      
    If a common product is indeed “unique” enough that a suitable substitute is not readily available down the street or across town, that implies the application of art by its creator is an important factor. Forced compliance means his art (speech) is being coerced, and possibly his freedom to live in accordance with his faith is being compromised by the state.

    In its decision, the court noted that:
    “…a faith that enriches society in one way might also damage society in other ways, particularly when that faith would exclude others from unique goods or services.”

    So which is it?  Does the state have an interest in forcing a person to abandon his religion to provide something of no more import than a pre-packaged cookie or random jumble of words, or is society served by suspending free expression to serve the whims of certain classes of customers?  Neither sounds very compelling to me.

    • Has an architect who designed a building participated in its creation, even if he never set foot on the jobsite?: Yes.

      Should a Christian architect be compelled to design a new building for the United Church of Satan, with special accommodations for black mass? : No, and under the law, he or she cannot be compelled to. It’s not a public accommodation.

      “Should a Christian baker then be compelled to design and create a cake for the opening rituals of that church, or better yet, a subsequent satanic wedding?’ has no relationship to those questions, because a bake shop is, at least arguably, a public accommodation, and a cake, even a custom one, is still just a cake. Is a grocery story “participating” in a gay wedding because potato chips for the reception are purchased there? No. Is Lays participating if their chips are used. No. I see no reason why the baker has any business knowing who is going to use the cake or for what.

      Should a Democratic sign maker be able to refuse to make a sign that says “Fuck Biden”? Should it matter who wants one or where it will be hung? Not in my country. Society does not work if businesses get to veto customers. If you won’t make a sign for anybody and any legal purpose, don’t be a sign maker. Cakes are little bit differently situated on the spectrum, but not enough for me to say that a baker can refuse to bake a cake for Martin Luther King’s birthday for a black man because his religion disapproves of adulterors.

      A website is not like a cake, and because it requires creative and technical talent, it’s not a sign, either.

      • The Lays potato chip does not apply because it is not specially ordered for an event but readily available at your local shop (thankfully – I loved them!).

        “Society does not work if businesses get to veto customers.” True, but the opposite is also true: Society does not work if businesses are forced to participate in events the proprietor deems contrary to his/her beliefs. Remember that freedom of speech, exercise of religion, and assembly also include the rights NOT to participate.

        I still think the unethical ones are those forcing Christian businesses to comply by using the crushing weight of the government as their weapon or tool of choice. I wpuld love to see them try this against a Musilm-owned or black-owned business. Why does that never happen?

        jvb

        • The argument breaks down because baking a cake for an event you do not attend, approve, manage or endorse is not “participating” in it under any reasonable definition of the word.

      • I’m just not buying the “a cake is just a cake” position. Seems pretty dismissive- I certainly know I can’t make a wedding cake. Maybe I need to see a cake you have made to get a better sense from whence you are coming.

        • THAT’S your standard? A steak isn’t just a steak, an oil change isn’t an oil change, and hotel management isn’t just hotel management either. I can’t do any of those things—that’s why I pay people to do them, and why they are public accommodations, like a bakery. The issue for public accommodations isn’t skill or even difficult skill. A product or a service isn’t an art just because it takes skill, or because one individual may do it with creativity and flair.

          • So at what point does some combination of skill, talent, creativity, and imagination combine to make a person’s product “art”? If a painter wishes to do bespoke work [maybe including wedding portraits 😉 ], are they precluded from doing anything else, like selling non-commissioned works or print copies, giving lessons, or selling art supplies, if they want to avoid being considered a “public accommodation” and so open themselves to being compelled to take any client for any work? Will they have to paint the Exalted Cyclops’ robed event? Can a baker have a say if he only produces custom designed one-off baked goods as commissions? Even then, would they have to be especially “artsy” to qualify him for an exemption?

            As someone who has married off two daughters, and been within earshot of numerous female discussions and critiques on the subject, I can attest to the fact that for many THE CAKE is not just a cake. It begins with the often long-drawn procedure of choosing a baker, sampling, planning, revising, etc., etc., to bring the concept of THE CAKE to reality. That’s not the end of it. THE CAKE is usually its own separate event within the overall ceremony; it has its own place of honor, its own sub-ceremony, its own set of pictures. It’s often delivered, set up, and even served (or supervised) by the baker or his representative. Is it art? Is it participation?

            I meant to question at least part of your earlier reply (but I’m lazy). Might as well throw it in here. Previously:
            (Me)”Should a Christian architect be compelled to design a new building for the United Church of Satan, with special accommodations for black mass?“: : (Jack)”No, and under the law, he or she cannot be compelled to. It’s not a public accommodation.
            How is an architect’s office not a public accommodation? In some federal regs, lawyer’s and doctor’s offices are specifically noted as examples of public accommodations; those seem fairly equivalent.

            • “So at what point does some combination of skill, talent, creativity, and imagination combine to make a person’s product “art”?

              And that’s why this is the kind of area where laws necessarily are meataxe solutions where scalpels were called for. And why “hard cases make bad law.” If people had been ethical, and not threatened democracy and the principles of the declaration by trying to cut blacks and other minorities out of full participation in the community, the laws wouldn’t have been necessary.

              Lawyers and doctors have their own ethical obligations. I assume architects do as well. That one’s right on the fuzzy line: you have to build stuff and be able to have stuff built for you, but making an architect design a cathedral for Satan in mandated speech. I’d like to see those regulations.

  6. So . . . true story:

    While I was finishing college, I helped a partner build the first Internet Service Provider in town.
    One of the ways we tried to generate income aside from the subscription for access was to create web sites that we would host for area businesses as a form of advertising. Being the “technical” arm of the business, I was the one who created these sites.

    This was 1995 when the Internet was first deregulated to not require a “government sponsor” to connect and use the Internet–a relic of the National Science Foundation’s NSFnet which had grown well beyond its educational mission. At the time, there were no pre-built packages and everything we did was custom-designed.

    Since it was all custom-designed, I used my skills with HTML, the basic language of websites, to replicate the design of a client’s existing paper advertising as well as possible.

    So one day we get a client.
    His “business” is essentially a multi-level-marketing arrangement that sells a number of edible products based on algae.
    To me, this was a scam, pure and simple. The claims for the health benefits of eating algae were overstated at best and probably downright false.
    But this was a paying client, and so got to work designing the site.

    Let me reiterate here: I was personally designing a website for a customer whose business violated my beliefs and sense of ethics.

    I am not exaggerating when I say that as I did the work, I started feeling physically ill.
    I believed this whole thing to be a scam, designed to convince people to buy a product they didn’t need with promises the product couldn’t possible keep, and further to rope them into signing on as another salesman of the same.
    It wasn’t even my own WORDS being committed to the digital screen. It was, as I said above, my best-effort attempt to replicate the design, color-scheme, and layout of the customer’s own pamphlets that had been provided.
    I most definitely felt like I was being an active participant in this scam. I did NOT want to do it.
    My Ethics Alarms (a term I would learn decades later from our esteemed host) were ringing so loudly that it was making me feel sick.

    Let me again reiterate: I felt as if I personally was endorsing this scam by creating the site that would promote it.

    So there is NO QUESTION in my mind that this is compelled speech and Compelled ENDORSEMENT of what is being advertised.

    There is maybe an argument that can be made–and that I could accept–if the sites that this business creates are done by pre-built templates where you just fill in some text and the rest is auto-generated in a cookie-cutter fashion. But the moment an expert (artistic and/or technical) gets involved in making the site, it’s 100% First Amendment in my book.

    –Dwayne

    Epilogue:As I recall, after the initial three-month run of the website, the customer elected not to continue paying for our services, and I was elated to be able to shut the site down once and for all.

    • Excellent perspective, though there is a bit of a distinction. The difference is that your customer paid for the site and its content. Here, the government is requiring a business to engage in activity, or cease engaging in activity, even though the proprietor objects. Again, I would love to see these people approach a Muslim business for this type of service. .

      jvb

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