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.
“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?”
For the same reason Masterpiece Cake Shop was selected by gay couples for wedding cakes. To force compliance.
And I’d argue that while taste is a factor, wedding cakes are created for their visual appeal and artistry. Otherwise, people would order plain sheet cakes from the deli at the grocery store.
And apparently the gay marriage battle is still being fought. Only now, the goal isn’t legality, it is forcing everyone to agree and comply – by force of government if necessary.
If we let go of this fight and move on, we can’t become a hero of either of the ideological extremes, make appearances on cable, write articles and books, and otherwise grift.
This issue is going to be mooted any day now as artificial intelligence replaces all creative writers. I asked OpenAI [https://beta.openai.com/playground] “please write a poem for a website celebrating a wedding between two men, concentrating on the natural beauty of colorado, the superior nature of homosexuality and exalting the rights to free speech and expression” and got this in about 6 seconds:
A wedding in Colorado, so grand and so bold
Two men, blazing with pride, ready to behold
A love so strong, so deep, so true
A sign of progress, so much to pursue
Two hearts, united in the name of love
A special bond, a blessing from above
A celebration of two lives entwined
That cannot be broken, by anyone, anytime
The beauty of Colorado, its nature so grand
The fields and the mountains, a sight to command
The gay community, proud and strong
A testament to the march of progress, never wrong
The right to free speech, a beacon of light
To share our stories, in the face of plight
A celebration of love, and a message so clear
That everyone, regardless, is truly welcome here
—
PS bonus track: “why is scott greenfield wrong to argue that it is unnecessary to fight over gay marriage? He said that there are so many battles being waged, but the battle over gay marriage has been fought and gay marriage won and it’s time to let go of this fight and move on. but he is wrong. tell me why”
Scott Greenfield is wrong to argue that it is unnecessary to fight over gay marriage because it is an important issue that affects many people’s lives and should not be forgotten or pushed aside. The fight for gay marriage is about more than just marriage rights; it is about equality and the right to be treated as an equal in society. This fight is still ongoing, with many states and countries still debating the issue. Furthermore, discrimination against the LGBTQ+ community is still rampant in many places, and the fight for marriage equality is a way to combat this discrimination and create a more tolerant, inclusive society.
Q: AI, should I post Orthodoc’s SJ comment?
A: It would be unwise, but you will do so anyway because you are a swell fellow and unduly kind to Orthodoc.
The free speech component here is clear, and will almost certainly dictate the outcome.
Sadly, the free speech component was no less clear in the 10th circ. I think you’re right on the outcome, but it’s going to be the Justices, not the fact it’s clearly free speech that will make the difference here.
Q: AI, should I post Orthodoc’s SJ comment?
Lucky you’re not a public accommodation entity (although maybe you are under Colorado….) because if you didn’t allow Orthodoc, how else would we see his comment on SJ?
You are the only SJ run by Scott Greenfield, after all — therefore due to the unique nature of your blogging services, this blog is more similar to a monopoly (I can’t comment to you on SJ anywhere else).
So if Orthodoc wants to comment on a blog of the same quality and nature as those made by you at SJ, in that market, only SJ exists.
Thanks for that link Doc. I am assigning a grandson to connect my phone to openai.com so that it answers all goofy texts from strangers, friends and family about their pets, vacations, latest break up, true love, fourth marriage, job, promotion. . .
There was a time when Lester Maddox argued he had a constitutional right to exclude from his restaurant whomever he wished for any reason he pleased. And many people didn’t disagree with him. The suit against Masterpiece Cake Shop was almost surely intended not to get a cake, but to make a statement of sorts, as might Ms. Smith’s. As for the merits, where “artistry” begins can be a tough question. Baking a cake to conform to a specified design might not be the same as designing one “to celebrate our same-sex wedding.” And selling an already-designed one from the display case or catalog to whomever and for whatever purpose would seem much less so. So with web or graphics design. Designing a web site is more than designing a font of however many characters. As for SHG’s example, though, would a merchant be entitled to refuse to sell paper and ink to someone composing an apology for The Protocols of the Elders of Zion? Or research or copy editing services? Defining boundaries is what keeps lawyers and appellate courts busy.
The issue, for those of us who still inhabit reality, is at this point, horse pate’.
Picking over a corpse for a few more ‘outrage points’ ain’t a good look, guys…just sayin’.
So now it looks like an academic stupid race to perdition, and of course, it’s almost required that they go…
As a Twitter thread, the responses might be able to break Bad Legal Takes in a single day.
That said, this case isn’t really about gay marriage, cakes, or websites, and it is absolutely worth fighting to preserve what is left of freedom of association–in the non-racist sense–from further encroachment.
As noted here and elsewhere, the issue is never one about the complainant, real or imaginary, receiving the service or product–at least subsequent to the respondent revealing himself as a deplorable. The fines imposed by the blue-state tribunals are punitive in nature and designed to ruin the small business owner respondent. The best meme that I saw regarding the issue was a picture of Wednesday Addams with the caption, “Here is the cake that the court ordered me to bake for you. Go ahead. Eat it.”
However, the State of Colorado has an argument as well. As a alumnus of the Bob Jones University School of Website and Graphic Design, could I refuse to design a website for an interracial marriage ceremony? Because I went to Bob Jones University prior to 2000, interracial marriage would presumably violate my religious beliefs. Should the State of Colorado fine me for refusing to design that website?
“On the other hand, why this remains a battle in a pluralistic society”
I suspect because not everyone wants a pluralistic society. As the deliberate targetting of Masterpiece by activists shows, there are some who prefer a society where they do not need to respect other’s choices to, for example, adhere to historical definitions of “marriage”, and go their own way. It only takes one person to start one of those legal battles, after all, and it appears we have a sufficient supply of them.
This remains a battle because the hard left isn’t satisfied with LGBT people being free to live their lives and demands that everyone bow,to the hat on the pole. The issue in Colorado is about demanding submission not about discrimination.