Ugh. This Again. Except That A Website Isn’t Like A Cake. [Corrected]

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.”

24 thoughts on “Ugh. This Again. Except That A Website Isn’t Like A Cake. [Corrected]

  1. A bit tongue-in-cheek, but what’s good for the goose is good for the gander. How many progressive apparel designers would refuse — or did actually turn down the opportunity — to have their garments appear on someone like Melania Trump? Quite a few, as I know them. Someone should put the shoe on the other foot and see what happens.

    • Good point. Think of all the wedding-related trades people who could be exposed as vicious assholes by the Trump family in relation to one of their weddings!

  2. I’m not trying to be deliberately obtuse, but since a baker can be compelled to bake a cake, can he be further compelled to bake a tasty cake?

      • No, not really, because they’re not out to get a good product, or even the best product, they’re out to force acceptance of their beliefs.

        • Exactly. This is not about a website or a cake or wedding photos. This is about compelled compliance. Does anyone really believe these businesses were targeted for anything other than their religious beliefs on same sex marriage?

          In my opinion there is no difference between a cake baker, a website designer, a photographer, or any other business. Compelled speech is compelled speech. Period.

          I don’t get the, “well, yeah, I’ll bake your cake but it might not be very good” as an ethical or legitimate solution. In fact, it is offensive to fair play. Especially when the baker, photographer, web designer has an excellent reputation as a competent business. That’s would ruin the business. I wouldn’t do business with someone who would do that – that business might intentionally screw something up because they don’t like my attitude or tie or shoes. It is almost fraudulent business practice. The ethical stance us to decline the opportunity and fight these authoritarians every step on principle, expensive though it might be.


          • I’m unclear. All laws require compliance. The issue is who the law applies to and can apply to. A restaurant can’t refuse to serve a gay couple, and that’s that: public accommodation. Is a bakery like a restaurant enough for the same law to apply? If all it does is sell generic cakes, yes. Custom cakes? Closer call—I still find the claim that customizing a wedding cake involves any endorsement of the wedding whatsoever, or that a cake is speech. Art? Close call. Is a website like a cake? Nope, not even close. And words are involved. Nor is a website design company a public accommodation within any definition I’ve seen:”facilities, whether publicly or privately owned, that are used by the public at large. Examples include retail stores, rental establishments, and service establishments as well as educational institutions, recreational facilities, and service centers.”

            If someone forces me to do something against my will and unjustly, watch out. I see no obligation to please them beyond the bare minimum. I I have an ethical obligation to announce before hand that my services will not be at their zenith, but that’s all. Message: maybe you want someone who is voluntarily working for you rather than one with a gun to his head.

            Your argument is essentially the one Alec Guinness uses to rationalize building a great bridge for the enemy, you know.

  3. My cousin’s wedding was a farce though their marriage has not been. I was the musician and at some point as I was pulling up the music for the recessional my husband (and page turner) flipped to Orpheus’s Can Can. I only didn’t do it because I wanted to possibly be invited to Thanksgiving again in the distant future.

    This seems the appropriate response to forced musical performances. Website design and cakes can follow as far as I am concerned.

  4. Important correction: There is no same-sex couple demanding a website. The designer filed a preemptive action based on the fact that she was likely to be charged under the Colorado statute, and the State obligingly confirmed that in its response. The case then moved up through the normal trial and appellate process.

  5. I disagree.
    Jack writes: “Unlike my position in the Masterpiece Cakeshop controversy—“Oh, bake the damn cake!” ……”Baking a cake for a wedding is not participating in the wedding.”

    Baking a cake — a Professional Wedding Cake for such a formal occasion for perhaps hundreds of attendees to view, then enjoy eating, and that may ordinarily bring thousands of dollars as a purchase price — is not like the chocolate cake I’m going to bake and ice for my granddaughter tomorrow. And such a cake concerns the reputation of a professional business that makes such cakes for very special occasions and thus IS PARTICIPATING in that special occasion with a significant interest in maintaining one’s businesses’ reputation. No court of law should be able to command a business, “Oh, bake the damn cake!”, and do so in ways that violates rights and obligations of the business.

    If it’s “just a damn cake”, then go to a damn LGBTQ bakery and order your cake. Then you can have your cake, eat it too …and nobody is harmed.

    Indeed, going purposefully to a christian business, whether web-designer, photographer, baker, singer, DJ, or a minister that performs weddings, solely to “teach people lessons to bend to the will of others at will,” is a despicable concept that cannot continue.

    I agree with Philip: Someone should put the shoe on the other foot and see what happens.

  6. The strange thing here and with the cake situation is the motivation of the couples. Why taint your own wedding experience with trying to force others to do what you want when you know they don’t want to?

    Weddings are celebrations not exercises in tactical thought conformance. When we got married, we had to actively ask people to stop trying to contribute to the celebration because we had so many allies who wanted to bestow upon us blessings.

    My dress, our flowers, our cake, cake topper, food, jewelry, and more were flat out bought for us. Every service person we encountered was happy for us.

    I did have one rough experience. One jeweler clearly went out of his way to be unfriendly. He even talked about how gross it was for two football players to fall in love. We got the message and left. Did it hurt? Yes it did. Could we have stirred the pot and got media involved? Sure. But what was important was our special day, not wanting to punish, even if it seemed “justified.”

    Without a doubt we’ll see tables turned eventually on this stuff. A progressive baker won’t bake a Trump cake or a dressmaker won’t make a dress for a biological female or something. Then it will be just more attempts at social control by zealots.

    When did live and let live get so complicated?

  7. If I remember correctly (and I could be wrong), but I thought the issue in the baker’s case was not that he wouldn’t bake the cake, but that he wouldn’t design one especially for the same sex couple. He was willing to bake the cake, I think. But then, at 75, my memory isn’t what it used to be.

  8. There isn’t much new under the sun. I feel like we’re doomed to rehash variations on a theme of stupid “controversies” ad nauseum.

    No one cares about the website. There was no actual plaintiff in this case, as has been pointed out above, but were there a person bringing suit in a case like this, I have serious doubts that they would actually have cared that the firm in question actually made their wedding’s website. I’m having a hard time wrapping my head around the idea that weddings have websites now, but I can guarantee that my answer wouldn’t change for something more relatable because my answer in cases like this is always the same.

    I want to know who the bigots are. I want to know the people that don’t want to work with me, because I don’t want to work with them. Ideally, I’d have enthusiastic business partners. Alternately it would be acceptable to have apathetic business partners. It’s self-defeating to have hostile business partners. More, it’s insanely toxic not only to seek them out, but to seek them out to participate in what should be a celebration of your happiness. How much free cranial real estate are you going to grant to people who hate you?

    Which is why these cases are blessedly rare: Most people get that. And when common sense fails the couple, there’s going to be a set of Christian bakers who would just bake the damned cake. What you’re left with, the people who make it to cases like these… Well, they’re not sending their best.

    • And the goal isn’t for the activists to find someone who will make the product they want. The goal of the activists is to root out non-conformists to punish them and ruin their lives for non-violent non-conformity.

  9. “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.

    Even while many products are the result of a great deal of scientific and engineering prowess every product ever made by man is, at some level, a creative endeavor that requires the producer to put some level of his or herself into the product. Every product is speech.

  10. If the decision goes against her, I’m tempted to do a GoFundMe to raise money to hire website designers to make pro-Trump sites. It would be better if I could think of some other theme that would be as repugnant to them but where I wouldn’t have to worry about whether I am violating some law about in-kind contributions to a candidate.

  11. If we define marginalized persons as those whose ideas, behaviors, or immutable characteristics are deemed of lesser importance by those wielding power then the marginalized demographic is no longer a small minority population segment as those various segments have effectively amalgamated significant political power through various fluid alliances. Thus, the marginalized group is that group which is vilified socially.

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