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. 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 “it 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.