Why did they go after Jack Phillips? Why didn’t Jack Phillips just bake a cake? Why must this war play out in Masterpiece Cake Shop? As it turned out, it didn’t get resolved by Justice Anthony Kennedy’s punt of a ruling which compelled Phillips to take the case all the way to the Supreme Court only to end up with a non-answer. This is why the Court will hear oral argument in Lori Smith’s case today.
Ms. Smith, in an interview in her modest but cheerful studio in an office building in a suburb of Denver, sat near a plaque that echoed a Bible verse: “I am God’s masterpiece.” She said she was happy to create graphics and websites for anyone, including L.G.B.T.Q. people. But her Christian faith, she said, did not allow her to create messages celebrating same-sex marriages.
“When I chose to start my own business as an artist to create custom expression,” she said, “I did not surrender my First Amendment rights.”
The First Amendment rights involved are include both Free Speech and the Free Exercise of religion. This case, unlike Jack Phillip’s, lines up the issues more clearly, as Smith creates websites, each of which is individually crafted so as to make her claim to “artistry” more clear than baking a cake to be presented and consumed at a gay wedding, and that she will otherwise work with LGBT clients on websites other than for weddings.
Still, that isn’t enough for Colorado.
Phil Weiser, Colorado’s attorney general, countered that there is no constitutional right to discriminate. “Once you open up your doors to the public, you have to serve everybody,” he said. “You can’t turn people away based on who they are.”
Must anyone who has a business that serves the public serve everyone who knocks on their door, gay or otherwise? The distinction here isn’t that Smith refuses to serve gay people, but refuses to build a website for gay marriages and will otherwise be happy to accommodate clients without regard to their sexual orientation.
While the six-member conservative majority on the Supreme Court might seem “custom made” to make the rulings the Court failed to reach in Masterpiece Cake Shop, that won’t be the focus of the case as cert was only granted as to the Free Speech claim.
In the Supreme Court, Mr. Phillips had pursued claims based on his rights to the free exercise of religion and the freedom of speech. Ms. Smith also asked the Supreme Court to consider both of those grounds, but the justices agreed to decide only “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”
But another difference between Phillips and Smith is also significant. Phillips was targeted because of his refusal to bake a cake for gay weddings. He didn’t ask to be in the middle of the culture war. Smith, on the other hand, brought the battle to herself.
Ms. Smith, by contrast, sued before facing any punishment.
“This is a made-up case,” Mr. Weiser said. “There haven’t been any websites that have been made for a wedding. There hasn’t been anyone turned away. We’re in a world of pure hypotheticals.”
What about the requirement that there be a case and controversy?
Ms. Smith countered that she should not have to have to risk fines for exercising her rights.
“If I continue creating for weddings consistent with my beliefs, the State of Colorado intends to fully come after me,” she said. “Rather than wait to be punished, I decided to take a stand to protect my First Amendment rights. I shouldn’t have to be punished before I challenge an unjust law.”
Challenging laws that have the potential, if not likelihood, of impairing constitutional rights has become sadly common. Sadly because so many laws are enacted which deliberately exploit the intersection of constitutional rights and present a clash that may well end up raising the question of whose constitutional rights prevail. That’s the case with an array of laws lately, ranging from prohibitions on abortion and control over teaching “woke” ideology in schools to cases like Phillip’s and Smith’s. In one sense, Smith’s willingness to be the test case enables the rest of us to know how the constitutional rights involved flesh out, an increasingly important task given the regularity of laws being enacted that put right in conflict.
Then again, there is a possibility, perhaps even a probability, that no one will ever call Smith and ask her to build a website for a gay wedding. After all, there are a great many others building websites who are more than happy for the business and have no objection, religious or otherwise, to doing so. If you’re a gay person in need of a marriage website, why would you turn to someone who doesn’t want your business rather than someone who welcomes it?
From the free speech perspective, Smith’s argument has significant merit. Creating a bespoke website is inherently expressive, and for the state to require her to be expressive when she chooses not to is to compel speech.
“Cake making is neither an inherently expressive nor a traditionally expressive medium,” Professor Carpenter said. “People make cakes for taste or nutrition.”
Ms. Smith’s design work was different, he said. It involved, he said, “activities that are inherently expressive, including through the usual mediums of communication like writing or speaking.”
On the other hand, why this remains a battle in a pluralistic society, where we can hopefully all live and let live, engage in our businesses and lives respecting the fact that others conduct themselves in ways that we choose not to, but respect their choice as we hope they respect ours, is unclear. Sure, if someone asked for a website to be built honoring Nazis, few of us would take issue with the “artist’s” refusal.
The free speech component here is clear, and will almost certainly dictate the outcome. But is it still necessary to fight this battle over something as socially acceptable as gay marriage? There are so many battles being waged, but the battle over gay marriage has been fought and gay marriage won. It’s time to let go of this fight and move on.