Reasons for ambivalence about the ruling on web design and same-sex marriage

Published 1:16 pm Monday, July 10, 2023

Americans who are, as the Bible describes Joshua, “well stricken in years” might remember images of events that preceded passage of the “public accommodations” provision of the 1964 Civil Rights Act. There were 1960 photos of a Black students’ sit-in at a Whites-only lunch counter in a Greensboro, N.C., Woolworth’s. and a 1965 news clip of restaurant owner (and future Georgia governor) Lester Maddox brandishing an ax handle to dramatize his refusal to desegregate his Atlanta restaurant.

The struggle to embed in law the principle of public accommodation — if you open your doors for business, you must serve all who enter — made civil rights aspirations immediate and vivid. An advocate put the matter pithily: Adults have a right not to be insulted in public in front of their children.

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Hence the ambivalence many might feel about a recent Supreme Court ruling. It illustrates the complexity of reasoning about rights when there is friction between two of them.

Lorie Smith, a Colorado creator of websites, disapproves of certain conduct, and wants some potential customers to know that she will not accept them as customers because she thinks doing so would endorse that conduct. But when she decided to start creating custom websites for weddings, she drafted a page to announce that she “will decline any request — no matter who makes it — to create content that contradicts the truths of the Bible, demeans or disparages someone, promotes atheism or gambling, endorses the taking of unborn life, incites violence, or promotes a concept of marriage that is not solely the union of one man and one woman.”

She did not, however, post the page — it included her belief that God has called her to use her “talents and business” to “publicly proclaim and celebrate” traditional marriage — lest she violate Colorado’s anti-discrimination law, which proscribes discrimination based on sexual orientation. The U.S. Supreme Court held, 6-3, that forcing Smith to comply with her state’s public accommodation law would violate her First Amendment rights by compelling her to communicate, through her expressive website creations, a message that would, Smith says, “compromise my Christian witness.”

The court’s six conservatives (Roberts, Thomas, Alito, Kavanaugh, Gorsuch and Barrett) supported Smith. The three liberals (Sotomayor, Kagan and Jackson) dissented, arguing that Colorado’s public accommodations law regulated Smith’s conduct, not her speech.

Carving exemptions from neutral laws of general applicability should be done rarely, reluctantly, and delicately. The public accommodations principle could become porous — statutory Swiss cheese — unless in subsequent cases, of which there might be many, courts make distinctions suggested by Southern Methodist University law professor Dale Carpenter.

He agrees with the court that Colorado’s public accommodations statute threatened Smith with unconstitutional speech compulsion. He notes, however, that the decision potentially sweeps broadly, beyond considerations of religion and gay rights.

The court says government cannot compel a vendor to create products that are both “customized” (produced for a particular customer) and “expressive” (expressing the vendor’s artistry) when the vendor objects to the message that would be conveyed by the product. Smith, Carpenter notes, is “not selling grilled cheese sandwiches at a lunch counter.” Her websites envision collaboration with each customer, using Smith’s words and designs.

Most businesses, goods and services will pose no challenge to any public accommodations law. and not all customized products are expressive: Putting extra onion or special cheddar on a cheeseburger does not qualify. Courts are in the business of drawing lines — making distinctions — and the Supreme Court’s siding with Smith might mean a booming business for lawyers.

Cases like Smith’s raise some nonlegal, moral questions about living in America’s current climate of contentiousness, beginning with: Would not American life be more congenial if people who believe that some behaviors, although legal, are reprehensible would accept that some people are going to do those things, and that providing a publicly advertised commercial service that facilitates those things does not express the provider’s moral endorsement?

Another question concerning congeniality: Why would a same-sex couple choose to compel the involvement in their joyous day of a vendor who is hostile to what they are celebrating, when there are alternative vendors offering similar services? The gay rights movement’s original live-and-let-live spirit has become curdled by a bullying impulse that reflects the truculence of many moralists nowadays.

Finally: Would all the conservative justices have so adamantly defended Smith’s speech rights against the luminous and hard-won public accommodations principle if the likelihood of state coercion were not so symptomatic of today’s culture of silencing and canceling?