Judging from the recent coverage on the US Supreme Court’s decision on 303 Creative v. Elenis, you’d think that a pogrom against LGBTQ Americans is in process.
Many of the headlines came out and said that SCOTUS was allowing businesses to turn away gay customers, period. That’s false and that’s clear in the majority opinion. The truth was that you cannot compel people to create and deliver a message demanded by these customers if you don’t agree with that message (in this case for reasons of religious doctrine and practice).
I’ll start with the Denver Post, in whose backyard the whole case developed.
First, a note to the Post editors: Underneath the headline (“Colorado wedding website designer can refuse gay customers, U.S. Supreme Court rules”) the subhead spells Justice Neil Gorsuch’s name wrong. Being that Gorsuch, the writer of the opinion, is very well known by locals — as he was a longtime Colorado resident before ascending to the high court — the Post might want to correct that.
The First Amendment allows a Colorado graphic designer to refuse to make wedding websites for same-sex couples, the U.S. Supreme Court ruled Friday in a decision that could have a sweeping nationwide impact.
The high court ruled for Littleton graphic artist Lorie Smith, who said her Christian faith prevents her from creating wedding websites for same-sex couples. Smith, who runs the business 303 Creative, wanted to make wedding websites only for straight couples.
I skimmed the article and didn’t see anything about religious beliefs being the reason behind Smith’s decision until well into the piece.
Also, note that — once again, we’re talking about the printed content of the majority decision — declining to do same-sex wedding content is not the same thing as the ability to refuse customers, period.
She challenged Colorado’s public accommodation law, which says that if she offers wedding websites to the public, she must provide them to all customers. Businesses that violate the law can be fined, among other penalties. Many states have such laws.
Justice Neil Gorsuch authored the 6-3 decision, in which the court’s conservative majority found that any wedding websites created by Smith would be expressive content protected by the First Amendment right to free speech, and that Colorado cannot force Smith to say or create messages that she does not believe.
Must add here that the Colorado Civil Rights Commission — which enforces the public accommodations law — was blasted by the Supreme Court itself in 2018 for not employing religious neutrality in the earlier Masterpiece Cakeshop case (.pdf here).
When I was interviewing Kellie Fiedorek, one of the attorneys representing Smith for a Newsweek piece I wrote last fall, Fiedorek said the commission was considered an outlier; that in 20-some other states with public accommodations laws, those states take essential First Amendment rights decisions into consideration. Not Colorado.
In its account of the (nearly all negative) reactions around Denver about the 303 Creative decision, the Post did not cite one religious leader, much less the pastor of Smith’s church who might have had a whole different read on the topic.
In other media, there was a ton of rending of garments over the supposed Nazi tendencies of the current high court; how it should be replaced, etc. It’s important to note, for example, that Gorsuch wrote the majority opinion in the 2020 case, Bostock v. Clayton County, which was a major victory for gay and transgender employees.
I see so few publications willing to break away from the herd on these issues.
There was an interesting piece in the Washington Post about “Stewart,” a supposedly gay man who had requested Smith’s services — supposedly precipitating the lawsuit — but a man in Portland, Ore., whose contact information was the same as the “Stewart” in court documents, said he never contacted Smith.
This angle was picked up by the Denver Post, which is running with it, but it’s no secret the case was hypothetical from the get-go. A headline in a recent story said the suspicious customer raises “ethical, legal flags,” but the court filings mentioning “Stewart” have been around for awhile. Why is the Denver Post only now getting around to pursuing this?
In other publications, like this Slate piece, much is made of the hypothetical nature of the case, but Smith and her lawyer told me that the moment the civil rights commission would hear of her stance on gay marriage, they’d slap not only a fine (up to $500 per violation) but jail time on her. Understandably, Smith wanted to avoid both. The key here? The previous actions of Colorado officials in First Amendment cases similar to this one.
I could spend all day pointing out misleading and just plain weird coverage, which was the norm nationwide, but fortunately a publication has done that job for me. This excellent piece in National Review calls out the worst offenders. The nadir was CNN’s interview with Transportation Secretary Pete Buttigieg who, other than being a gay man, had nothing to do with the court case.
What I’d like to point people to are journalists who did it right. Reporters could have called Eugene Volokh, a First Amendment expert who teaches law at UCLA and from whose blog, The Volokh Conspiracy, runs in Reason magazine. One of his co-bloggers, Dale Carpenter, wrote the following:
The Court repeatedly emphasized the unusual nature of the product Lorrie Smith, the website designer, proposed to sell: working closely with each individual customer to tailor specific and original messages by using Smith’s own words and designs. Very few businesses take on such individualized commissions. She was not selling grilled cheese sandwiches at a lunch counter.
Or she wasn’t sitting at a craft fair or farmer’s market with all her wares out on a table, in which case you can’t pick and choose who buys them. The majority decision also made it clear that Smith has consistently been willing to work with gay customers on a variety of other projects.
Before Friday, the answer of some scholars and organizations like the ACLU was that none of this matters because when you’re selling things in the public marketplace you basically have no First Amendment rights. Your choices were to quit your trade or come to heel. 303 Creative is clear that this answer will no longer suffice. It never really did.
As for what comes next, I want to cite an interview on the Megyn Kelly show with Kristen Waggoner of the Alliance Defending Freedom, which represented Lorie Smith and Jack Phillips, the defendant in the Masterpiece case.
At the 3:50 minute mark — if you click on the video atop this page — Kelly abruptly switched the topic to personal pronouns, saying those too are compelled speech.
Referring to a sentence in the judgment saying the constitution prevails over Colorado’s public accommodations law, “I think Kristen Waggoner is going to use that line among others in this decision to fight for us who don’t want to be forced on the preferred pronouns nonsense.” she said.
Yes, responded Waggoner, her organization has cases where people have been fired for not using preferred pronouns. That’s a classic free-speech issue. Why haven’t I seen any coverage on this?
Reason saw the real issue emanating from this case to be all about social media. If you can’t force a website designer to serve a gay wedding, a subhed asked, how can you ask a platform to serve (or allow access to) a specific politician? Good question. In an essay written by Scott Shackleford:
Rather than bemoaning that a very small number of businesses will have the right to decline service to gay weddings — the many competitors in this extremely saturated commercial field will happily pick up the slack — consider how this ruling helps reinforce every business’s liberty to decline to platform speech they disagree with or find offensive. And that includes social media platforms like Facebook, Twitter, YouTube, and others.
I joked on Twitter not long after the ruling Friday that the big loser of the decision was actually Florida Gov. Ron DeSantis, who signed and supports a law in his state that forces social media platforms to carry messages from candidates running for office within the state and threatens massive fines to qualifying platforms that refuse.
Citing everyone from Florida Republicans to the civil rights commissioners in Colorado:
They each attempt to argue that certain businesses are merely providers of services. It shouldn’t matter to them what content they’re handed. They should just do the job. Bake the cake. Print the shirt. Post the statement.
They are wrong. Just as Smith shouldn’t be required to design a gay wedding page, Elon Musk over at Twitter shouldn’t be required to host political speech from anybody he deems offensive.
What’s notable in the post-mortem coverage of this case is how little input religion reporters had in the coverage. I didn’t see any familiar bylines by religion specialists about what a victory this ruling was for believers who don’t wish to be compelled to support what their faith denies. Instead, the emphasis was on the perceived victims, although most gay couples would have the foresight to read Smith’s warning on her site that she only composes wedding pages that accord with her traditional Christian beliefs on marriage. The majority would then take their business elsewhere.
I wish reporters would be honest in admitting that much of the anger expressed over the verdict stems from how Lorie Smith outwitted her opponents by filing suit first, rather than enduring a string of lawsuits like what Jack Phillips is having to endure.
I’m looking for that investigative piece on the Colorado Civil Rights Commission that, after having been reproved twice now by the Supreme Court, hasn’t changed its ways at all. Where is that New Yorker take-out on Autumn Scardina, the transgender attorney whose personal vendetta against Phillips just never ends because the courts have given her a free pass?
FIRST IMAGE: Photo of Lorie Smith courtesy of Alliance Defending Freedom