When Ethics Alarms first covered the case of a Christian website designer who was prosecuted for refusing to design a website celebrating a same sex wedding, I wrote at the top, “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.”
Now the case has indeed arrived at the Supreme Court. Its likely reversal (the website designer, a trial and a appeals court ruled, could not refuse to design a website celebrating a same-sex wedding) is being blamed by the LGBTQ suck-up media on all those evil conservatives who have invaded the Court since it ducked the matter of Christian baker Jack Phillips, who refused to bake a cake for a same-sex wedding. SCOTUS decided in favor of Phillips on technical rather than substantive grounds, with a waffling majority opinion by Justice Kennedy, who specialized in such things. Kennedy is gone, but the reason the web designer is likely to win isn’t the change in the composition of the Court, but because the 10th U.S. Circuit Court of Appeals was dead wrong when it ruled in 2021 that Lorie Smith and her company, 303 Creative, violated a Colorado law by refusing to create a website for a same sex union.
The Colorado law at issue bars public accommodations from refusing to provide equal access to services because of sexual orientation. Is a website design company really a “public accommodation”? That’s a stretch, to put it mildly. The law’s communication clause also says public accommodations—which a website design company really isn’t— cannot publish any communication indicating that full access to services will not be provided because of sexual orientation. Smith had stated in her publicity that she would not do same-sex marriage websites, as her religion did not approve of them. To ensure that a bullying same-sex couple didn’t try to to punish Smith, make her life miserable and wrecking her business, she sued to make sure the state didn’t apply the law against her.
A 2-1 appeals court majority decreed that neither provision violated Smith’s free speech and free exercise rights under the First Amendment, which is odd, because the Court acknowledged that Smith’s websites are pure speech that involve her unique creative talents, making it an artistic endeavor too. The Court asserted anyway that 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.” Marginalized groups can now control the speech of others, then! Dignity trumps speech! I did not know that. You must submit to the LGBTQ Borg, Resistance is futile. You will be assimilated!
Under this theory of forced art for the greater good, a singer who performs at weddings would have to croon at a same-sex ceremony even if her faith held that such a ceremony was a sin.
I do not think this progressive, 2022 warping of freedom of expression will fly with this Court. Good.
My solution to the problem last year:
…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.
I still see no reason why that won’t work. Maybe Smith has too much integrity to do a lousy job even for abusive customers trying to bend her to their will. I salute Lorie for her principles, then. But an awful lot of time, expense and lawyers’ fees are being wasted on a bad case that could have been settled outside the courts.
I concluded in the earlier post,
Unlike my position in the Masterpiece Cakeshop controversy—“Oh, bake the damn cake!”— I see only one jerkish side in this one: any couple that would deliberately seek 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.
I haven’t changed my mind about that, or my belief that the Supreme Court will follow the First Amendment and not be “assimilated.”