"For what is a man, what has he got?
If not himself then he has naught
Not to say the things he truly feels. . . .
[I] did it my way.""My Way." Lyrics by Paul Anka.
An attorney writes that the Supreme Court got it right in the Colorado website designer case.
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| Washington Post |
Maybe my first impression -- dismay at the Court's decision -- was misplaced. Maybe the issue is free speech, not empowering prejudice under the cover of "free exercise of religion." Maybe the Court is protecting people from being forced to express things they don't believe.
The case was manufactured, but the plaintiff's supposed intention was to announce that they won't work on websites that promote same-sex marriages. That policy, if implemented, would have run afoul of Colorado law. They proposed statement strikes me as bullying and uncivil. It stigmatizes gay marriage. But free speech means that people can say and write nasty things. That isn't what the case was about. It was about whether a business must create expressive material they object to. I can sympathize with that. I understand an advertising firm declining to do tobacco ads. I understand a campaign consultant deciding not to advise a candidate they don't support. I delete and do not publish obscene pro-Trump comments submitted to this blog by a local Republican activist.
Richard Friedman is a college classmate. He retired last year after nearly 47 years as a lawyer with the U.S. Department of Health and Human Services.
Guest Post by Richard Friedman
I think the Court reached the clearly correct result in the 303 Creative case. The "conduct" at issue was the creation of a website and graphics for a wedding. The creation of those products was stipulated by the parties to be expressive in nature. (For the non-lawyers, a "stipulation" is an agreement between opposing litigants as to a fact.) The dissent repeatedly tries to characterize the plaintiff's position as discriminating on the basis of the identity of the customers, but that attempt is belied by the other stipulations -- that the plaintiff was “'willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender,' and she 'will gladly create custom graphics and websites' for clients of any sexual orientation." Further, "She will not produce content that 'contradicts biblical truth' [as she understands it -- RF] regardless of who orders it." See the opinion of the court here.
In other words, she would accept a commission from a same-sex couple for a website for an opposite-sex wedding, but would decline a commission from an opposite-sex couple for a website for a same-sex wedding. The dissent finds the prospect of such commissions laughable, but it is hardly such. A same-sex couple could commission a website for the wedding of their daughter who was marrying a man, and an opposite-sex couple could commission a website for the wedding of their daughter who was marrying another woman.
Since the discrimination was not on the basis of who the client/customer was, but rather on the basis of the message that was to be conveyed by the service, I believe that the dissent is plainly wrong, and the decision correct.
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15 comments:
It sounds to me like the Supreme Court has joined Ron DeSantis' Cancel Culture campaign. Oh well, Happy 4th of July anyway, and here's to justice for all!
Let's look at it from another perspective; as advertising.
For instance, if I put a sign outside my establishment that reads "No Shirt, No Shoes, no Service", I'm advertising that I am discriminating against shirtless, shoeless individuals, and as such I am proclaiming a value that presumably will attract the type of customer I desire.
At present, there are no laws that restrict me from doing this. Shirtless, shoeless people have not been shown to be considered as a special class, historically discriminated against. Maybe they should be. As a society this is an open question. Any number of things could be seen this way. The sign could say "No Left Handed People", or "No Redheads", without generating interest from authorities.
So this person by publicly stating "No Same Sex Weddings" at the very least is expressing a value that excludes some business, in the hopes of attracting customers who would choose her because they share her values.
The problem arises because a majority have decided that it is in the common good to not discriminate against homosexuals and, recognizing that some people won't discard their prejudice, for whatever reason, it became necessary to legislate the behavior. This includes restraining hate speech. As a practical manner we can't prosecute every vile epithet from every ignorant bigot, but we certainly can restrict their ability to advertise their prejudice. This is why the "Whites Only" signs have been removed from the public square.
Hiding bigotry behind free speech is both cowardly and bad manners.
This SCOTUS decision does not reflect this society's, indeed humanity's, values and we are all diminished as a result. Let's not forget this is the backlash from electing an African American to the Presidency.
For hundreds of years, peoples "sincerely held religious" beliefs were one the primary justifications for slavery and then Jim Crow laws in this country. There were, and likely still are, many people who hold sincere religious beliefs that interracial marriage is an abomination. There's others who think all gay and transgender folks are going straight to Hell. And while I personally find beliefs like that to be repugnant, I have no problem with people thinking about them, talking about them in their house of worship, or even proclaiming them loudly on public streets.
The problem is when you decide to make those beliefs a core part of your business that's open to the public and start trying to decide who are going to serve based on a disagreement you have with someone's lifestyle that has literally ZERO effect on your own life. The Christian bakery who advertises their services publicly should have no more right to deny a gay couple a wedding cake than I should have the right to deny a black or Jewish person a hotdogs from my hotdogs. stand. What would be a different matter entitely would be if the local neo-Nazi group comes in asking for a cake with swastikas on it, as most reasonable people would agree that a symbol such as a swastika has rightfully earned a place on the "okay to discriminate against list" whereas writing the phrase "Congrats Susie and Sally" does NOT rise to that level.
If your religious beliefs are strong enough that you're unwilling to meet the standard of serving everyone who makes reasonable requests, then don't have a public business. Do something private, or through your church or whatever where discrimination is more tolerable.
Thank you- I found the distinctions helpful. It made me think about other kinds of instances where a business might decline services based on the nature of the business. For example, years ago when I was an electrical contractor, I turned down an opportunity to install lighting in an adult entertainment venue- not based on the persons seeking to hire me, but the substance of what the service provided.
Taking this a bit further, it seems like this would protect a Muslim or Jewish caterer from being forced to cater a pork-BBQ, not because the guests were pork-eaters, but because the substance of the meal was against their religious beliefs.
My civics teacher in high school summed up the Bill of Rights to the class as simply a statement of personal autonomy with the statement that "your individual rights end where my nose begins."
If I read the decision correctly I'm free to be a bigoted and prejudiced person as long as my feelings are not manifest into actions that harm another individual. Lacking harm in the case mentioned or imagined, I see the decision as having little impact or effect. I can imagine, also, a case where the customer is requesting a service the the shop or business choses not to provide, by simply quoting an absurdly high fee for service or stating the work schedule is full that the request is withdrawn and they go elsewhere. Your rights are also guarantied from harm by the government.
The the time the Bill of Rights was written the definition of harm was much narrower than the definition in current vogue. Hurting ones feelings or emotional distress wasn't considered injury.
I kinda get lost in the arguments on both sides. Both sides claim to be right, so...
What if a company will sell their "generic" product (such as plain team shirts) to anyone but refuses to customize/personalize the shirts with the team name (example: Lesbian All-Stars) because it violates their beliefs?
I am not religious, but guess what folks? Religious people have rights too under the Constitution, whether you like it or not.
The political left is notorious for only respecting the rights of people with whom they agree. The left tends to be very intolerant of religious people and people with conservative views.
Friendly reminder that freedom of belief and speech and the free practice of religion, in general, are guaranteed under the U.S.Constitution. Anti-religious bigotry is odious and un-American.
To some extent, your two consecutive guest bloggers talked past each other. Much of what the critic of the SCOTUS decision objected to was the court's refusal to abide by longstanding practice about standing to sue. The plaintiff had not been harmed by the State of Colorado, which hadn't taken any action against her. Nor did any private person who had tried to enlist her services (none, apparently, had) file a complaint against her. Thus, the only reason the court chose to hear the case was because its majority wanted to make a statement--a form of activism that exceeded former liberal-dominated Supreme Courts, whom conservatives continually castigated as activist. The guest blogger who supported the decision argued that the plaintiff had a right to put that statement on her website. I think the First Amendment does guarantee her that right. But the issue most of the other comments focused on is whether a private business owner can refuse service to someone of a legally protected class if the refusal is based on religious objections, not mere prejudice. That wasn't what this screwy case was about. It was, however, what an earlier case was about--a baker who refused to bake a cake for a same sex wedding. The court ruled in favor of the baker. I'm inclined to side with the court on that one.
FYI: Yesterday a big deal was made over why a gay couple would single out a Christian to design their wedding website. The suit claimed the request was made by “Stewart” and gave his phone number and email address. But Stewart told The Associated Press he never submitted the request and didn't know his name was invoked in the lawsuit until he was contacted this week by a reporter from The New Republic, which first reported his denial. This whole case was nothing but a gratuitous attempt by anti-woke crusaders and a sympathetic Supreme Court to legislate their prejudices. Fortunately, as this court has shown, precedents were set so they could be overturned.
This is so interesting. Woke Guy agrees with me about the Jewish baker not wanting to bake a swastika cake, but he and I disagree about the gay wedding cake.
It seems to me that there is not a principle at play here; it is merely where to draw an arbitrary line between two principles that are in conflict: non-discrimination vs not compelling speech. Where to draw the line seems to totally depend on your sympathy for the gay couple vs the baker, or the Nazis vs the baker. I personally would come down on the side of the baker in both of these situations.
What about someone whose sincerely held beliefs lead them to refuse to bake a wedding cake for an interracial couple? That one gives me trouble; I don’t honestly know where I would come down, but I seem to be leaning towards the couple instead of the baker. I can’t think of a principled reason for this, it’s just where my feelings go.
Jonathan Haidt talks about how our emotions are like an elephant, and our conscious mind is like a rider on the elephant. The rider, seeking to convince itself that it is in control, sees what the elephant did, and makes up rationalizations about how what the elephant did was the right course of action, and was what it, the rider, had already decided to do. But the elephant is actually always in control. The rider is just making up stories to comfort itself.
I don’t see a rational way to resolve this issue; it’s just going to be a question of where the political Ouija board ends up.
There’s a point being missed in the Nazis vs. gays cake bake: All rights have limits. We have a right to own guns, but not everyone has the right to own any gun ever made. The line was drawn at machine guns, although most Americans would like it to be more restrictive. The classic example of limits on speech is shouting “Fire!” in a crowded theater. It’s illegal to incite a riot too, although Trump’s gotten away with it so far.
The question is one of individual rights vs. the common good. So yes, the question is always where to draw the line, but there’s no question that it needs to be drawn.
Does “rights have limits” tell us where to draw the line? If so, what is it saying?
A cake with a swastika isn't a valid comparing because racists aren't a protected class, whereas guys are.
I strongly disagree with this opinion.
Why is a cased based on false information getting to SCOTUS? Attorneys are supposed to do their due diligence of the facts their client presents, and the alleged plaintiff state he's not involved.
I'm glad that I can now blatantly refuse to do business with mormons and other religions.
The obvious hasn't been mentioned:
Web site design, as well as almost any design takes input from a client to develop content that draws in readers and customers.
The designer may share common beliefs with that client , none at all, or even despise the subject matter.
Would a left-leaning designer spend time designing content promoting a right-leaning client's website, book, article, or other product? Vice-versa? Imagine how "good and persuasive" that design effort might be if forced.
When I considered or interviewed potential suppliers of components and services for for my companies, the most important thing for me was whether we would get along, and whether they had a good reputation. We were even approached by other companies to design something for them. Some we pursued, others we said no thank you.
Interpersonal relationships sometimes matter, and we don't always do our best if there is a potential for conflict.
A business should not be forced into a job or service where the outcome won't be the best for the provider or the customer.
PS I've seen bad cakes, and good cakes and websites. Sometimes shopping a little yields the best results.
Comparing LGBT+ to someone not wearing a shirt or shoes is insulting.
Anyone can put on a shirt or shoes and change their status.
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