Article Re: SCOTUS Review of Gay Rights Case (Wedding Websites)

[smac97]

Interesting:

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The Supreme Court said Tuesday it would consider whether a Colorado website designer had a First Amendment right to refuse to produce same-sex wedding announcements, the latest clash between LGBT and religious rights.

This is somewhat inaccurate, as the case seems to be as much or more about Free Speech  as about religious rights.

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The court has yet to rule squarely as to whose rights—the LGBT community’s or religious conservatives’—must yield when they directly conflict. The Colorado case granted Tuesday, to be argued in the court’s next term and likely decided by June 2023, suggests the justices may be ready to address that issue.

A Littleton, Colo., company, 303 Creative LLC, and its owner, Lorie Smith, filed suit seeking an exemption from the state Antidiscrimination Act, which requires most shops and other businesses to treat customers equally without regard to factors including race, religion, sex, age, disability and sexual orientation.

Ms. Smith said she plans to begin offering wedding websites but that her religious beliefs preclude her from doing so for same-sex couples. “As a Christian who believes that God gave me the creative gifts that are expressed through this business, I have always strived to honor Him in how I operate it,” she says on 303 Creative’s website. “I am always careful to avoid communicating ideas or messages, or promoting events, products, services, or organizations, that are inconsistent with my religious beliefs.”

I'm struggling with this.  I suppose it may turn on how much "speech" Ms. Smith plans to put into these websites.  There is, I think, a difference between selling a generic wedding cake and a bespoke one.  There may also be a distinction between a basic website to be "built" by the soon-to-be-married couple, and one specifically designed and and tailored by Ms. Smith.

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In expanding the business to wedding website design, Ms. Smith planned to add to that statement, explaining that she would turn away same-sex couples because preparing their announcements “would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage—the very story He is calling me to promote.”

Federal courts in Colorado, however, found no First Amendment exemption for Ms. Smith, even if other website designers were willing to serve same-sex couples.

Granting 303 Creative an exception “would necessarily relegate LGBT consumers to an inferior market because [Ms. Smith’s] unique services are, by definition, unavailable elsewhere,” a 2-1 panel of the 10th U.S. Circuit Court of Appeals, in Denver, said in July.

“The government doesn’t have the power to silence or compel creative expression under the threat of punishment. It’s shocking that the 10th Circuit would permit Colorado to punish artists whose speech isn’t in line with state-approved ideology,” said Kristen Waggoner, general counsel of Alliance Defending Freedom, a religious advocacy group that represents 303 Creative.

“The U.S. Supreme Court has consistently held that antidiscrimination laws, like Colorado’s, apply to all businesses selling goods and services. Companies cannot turn away LGBT customers just because of who they are,” said Colorado Attorney General Phil Weiser, a Democrat. “We will vigorously defend Colorado’s laws, which protect all Coloradans by preventing discrimination and upholding free speech.”

I wonder if some of the Masterpiece Cakeshop ideas will come into play here.  I think they will. 

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Federal civil rights law doesn't explicitly protect LGBT people from discrimination, although like Colorado, many state and local ordinances do. Those measures must comply with federal constitutional provisions as the Supreme Court defines them.

In 2020, the Supreme Court for the first time applied sex-discrimination provisions of the federal Civil Rights Act of 1964 to cover LGBT employees. Those cases, however, didn’t involve religious objections to gay and transgender people or their marriages.

Two years earlier, the court sidestepped a similar conflict under the Colorado antidiscrimination law involving a baker who cited religious reasons for refusing to provide cakes for same-sex weddings.

I am not persuaded that the Free Speech clause can be endlessly applied to create exemptions from anti-discrimination statutes.  In some circumstances I could see it becoming a pretext rather than a good faith thing.

However, I also believe that the First Amendment, particularly as pertaining to compelled speech, ought to generally trump anti-discrimination statutes.  To the extent there is a contest between the two, the latter should give way to the former.

I also think that gay people are generally entitled to the same rights as everyone else.

I also think anti-discrimination statutes are being utilized to target and punish religious people because of their religious beliefs and because of the content of their speech.

I also think that the free market is a better means of easing this tension than the courts.

I said this back in 2018 about the Masterpiece Cakeshop case:

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If a custom-designed cake for a straight wedding is decorateed and designed exactly the same as the custom-designed cake for a gay wedding, is the speech saying something different?

Yes.  Here's why: What do Adele, The Rolling Stones, Twisted Sister, Steven Tyler, R.E.M., Elton John, Luciano Pavarotti, Queen and George Harrison have in common?

They are all musicians who, either directly or through representatives, have told Donald Trump to stop using their music at his campaign rallies and events.

Quoth Dee Snider: 

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“When Donald started running for office, he asked me, he called me. He says, 'Can I use the song?' And he's a buddy. And I said, 'Yeah. Go ahead.' But as the months went on, I heard a litany of his beliefs that I'd never discussed with him,” Dee Snider told CNN. "I finally called him and I said, 'Man, you've gotta stop using the song. People think I'm endorsing you here. I can't get behind a lot of what you're saying.' And that night. He has not used it since.”

Quoth an attorney for Aerosmith:

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"Lawyers for Aerosmith wrote a cease and cease-and-desist letter to the Trump campaign claiming the Republican 'did not have our client's permission to use Dream On' or any of Tyler's other songs and that it 'gives the false impression that he is connected with or endorses Mr. Trump's presidential bid.'"

Quoth representatives of the Pavarotti estate:

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“As members of his immediate family, we would like to recall that the values of brotherhood and solidarity which Luciano Pavarotti expressed throughout the course of his artistic career are entirely incompatible with the world view offered by the candidate Donald Trump."

Quoth Queen:

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"Queen does not want its music associated with any mainstream or political debate in any country. Nor does Queen want ‘We are the Champions’ to be used as an endorsement of Mr. Trump and the political views of the Republican Party."

Quoth Elton John:

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"I’m British. I’ve met Donald Trump, he was very nice to me, it’s nothing personal, his political views are his own, mine are very different, I’m not a Republican in a million years."

The songs being used by Donald Trump are "exactly the same" as they are when used in other venues, and yet these various artists do not want Donald Trump to use their music in his campaign rallies.  Now why is that?  Well...

• "People think I'm endorsing you here.  I can't get behind a lot of what you're saying."
• "[Using Aerosmith songs at Trump rallies] gives the false impression that he is connected with or endorses Mr. Trump's presidential bid."
• "[Pavarotti's values] are entirely incompatible with the world view offered by the candidate Donald Trump."
• "Queen does not want [its music] ... to be used as an endorsement of Mr. Trump."
• "[H]is political views are his own, mine are very different, I’m not a Republican in a million years."

The use of these artists' "speech" in a particular venue (a Trump rally) is - as you put it "speech [that is] saying something different" than if it were being used in other venues.  

More to the point, it's their music.  It's their artistic expression.  It's their speech.  Since when are Americans in Group X in the habit of coercing other Americans in Group Y to speak in ways that contravene the beliefs and values of Group Y?

If Elton John doesn't like the way his artistic expression is to be used in a particular venue, in ways that he feels give the impression of his endorsement, then he should be entitled to refuse permission for such use.  That's not bigotry.  That's Elton John recognizing the reality that the use of his artistic speech at a Trump rally gives the impression that he is endorsing that event.

Likewise, if Mr. Phillips doesn't like the way his artistic expression is to be used in a particular venue, in ways that he feels give the impression of his endorsement, then he should be entitled to refuse permission for such use.  That's not bigotry.  That's Mr. Phillips recognizing the reality that the use of his artistic speech at a gay wedding gives the impression that he is endorsing that event.

We're all supposed to like the concept of equal rights, correct?  And yet there are some folks who would deprive Mr Phillips of his right to the use of his artistic speech that is claimed by Elton John and all the other artists quoted above.  These folks cheer the government coercing and punishing Mr. Phillips for refusing the use of his artistic speech at in ways that do not reflect his values, and which use may give the false impression of his endorsement.

I predict that at some point there will be a series of "turnabout is fair play" events where an "LGBT-friendly" business is asked to bake a cake or design a website that contravenes the preferences and sentiments held by that business as pertaining to some social controversy.  That business will refuse the request, and will then be sued under an anti-discrimination statute.  For example, let's say that a private religious group wants to stage an event endorsing the idea that marriage is between a man and a woman.  Decorative cakes will be ordered, banners will be designed, literature will be prepared.  The religious identity of the group will be plain and clear.  The religious character of the messaging in the items ordered will likewise be clear.  

I am curious what the federal court would say in that instance.  Would it say that the religious group, if refused protection under the anti-discrimination statute, “would necessarily relegate {then} to an inferior market because [the] unique services {of the businesses they solicited} are, by definition, unavailable elsewhere"?

Again, I also think that the free market is a better means of easing this tension than the courts.  And yet I think religious individuals, groups and organizations will continue to be subjected to "lawfare" until these things get sorted out by the courts.  I hope there is some sort of Détente-style solution that can be found.  I don't want either side to lose.

Thoughts?

Thanks,

-Smac

[pogi]

4 hours ago, smac97 said:

I also think that the free market is a better means of easing this tension than the courts.

How will tension be eased by the free market? 

Either this woman can or cannot legally discriminate based on sexual orientation (something currently against the law in her state).  That seems like a tension beyond the scope of the free market.

Edited February 22, 2022 by pogi

[strappinglad]

Is " political orientation " a protected class ???

[Danzo]

2 hours ago, pogi said:

How will tension be eased by the free market? 

Either this woman can or cannot legally discriminate based on sexual orientation (something currently against the law in her state).  That seems like a tension beyond the scope of the free market.

If there is a market for something, someone will provide it.

If someone wants to pay for a same sex wedding website and I don't want to do it, someone down the street will do it instead if there is money to be made. 

Anyway, that is the general idea.

[poptart]

That'll be interesting, CO is blue territory now and heavy LGBTQ, we were one of the first states to really cement in rights for that population.  Littleton, Highlands Ranch and Parker is red territory, both sides love to play the doxing game.  Douglas country just had some spat with their teachers, some of the locals threatened to publish the names of the teachers if they walked out, let's see if someone from our side returns the favor since that's how politics is here now.  Either way, free entertainment awaits lol.

 

Edited February 22, 2022 by poptart

[pogi]

39 minutes ago, Danzo said:

If there is a market for something, someone will provide it.

If someone wants to pay for a same sex wedding website and I don't want to do it, someone down the street will do it instead if there is money to be made. 

Anyway, that is the general idea.

 Right, but there is already a law in place in this case which prohibits discrimination based on sexual orientation.  This business owner is suing for an exemption.  That can't be solved by the free market.  

[Amulek]

4 hours ago, smac97 said:

This is somewhat inaccurate, as the case seems to be as much or more about Free Speech  as about religious rights.

The original petition presented two questions to the Court:

1. Whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist’s sincerely held religious beliefs, violates the Free Speech or Free Exercise Clauses of the First Amendment.
2. Whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable under Smith, and if so, whether this Court should overrule Smith.

SCOTUS elected to only grant cert on the first question, which is probably for the best as it will allow the Court to make a clear ruling on how anti-discrimination laws ought to work when they come into conflict with "pure speech."

Distinguishing between expressive and non-expressive products / services may be difficult in some cases (e.g., Masterpiece), but not here. Even the 10th Circuit agreed that the case involves purely expressive conduct. And I think that distinction will make it possible for the Court to reach a near unanimous opinion in favor of the petitioner.

 

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I'm struggling with this.  I suppose it may turn on how much "speech" Ms. Smith plans to put into these websites.  There is, I think, a difference between selling a generic wedding cake and a bespoke one.  There may also be a distinction between a basic website to be "built" by the soon-to-be-married couple, and one specifically designed and and tailored by Ms. Smith.

If you're talking about selling a template vs creating a unique website, then I would agree that a meaningful distinction probably exists there. It would be akin to a painter who might be required to sell prints to anyone without discrimination but who would not be subject to that same restriction when it comes to accepting commissions for original pieces.

 

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However, I also believe that the First Amendment, particularly as pertaining to compelled speech, ought to generally trump anti-discrimination statutes.  To the extent there is a contest between the two, the latter should give way to the former.

I tend to agree. 

 

[Amulek]

1 hour ago, strappinglad said:

Is " political orientation " a protected class ???

In certain jurisdictions, yes. For example, you can find the list of traits protected in DC (which includes "political affiliation") here: https://ohr.dc.gov/protectedtraits

Other places have similar requirements. See here for more info: https://reason.com/volokh/2021/10/18/bans-on-political-discrimination-in-places-of-public-accommodation-and-housing/

 

[Danzo]

31 minutes ago, pogi said:

 Right, but there is already a law in place in this case which prohibits discrimination based on sexual orientation.  This business owner is suing for an exemption.  That can't be solved by the free market.  

I see what you mean. 

perhaps regulation via market forces could render such a law unneccesary.

[smac97]

3 hours ago, pogi said:

Quote

I also think that the free market is a better means of easing this tension than the courts.

How will tension be eased by the free market? 

There is no shortage of, say, bespoke wedding cake makers who would be delighted to take money in exchange for making a gay wedding cake.  No need to coerce someone who is resistant to speaking such things when there are so many others who are fine with speaking such things.

3 hours ago, pogi said:

Either this woman can or cannot legally discriminate based on sexual orientation (something currently against the law in her state).  That seems like a tension beyond the scope of the free market.

Alas, I think the issue is more complex than that.  If "cannot legally discriminate" amounts to "Party X gets to use the coercive power of government to compel Party Y to speak things Party Y does not wish to speak," then there "can or cannot" does not quite do it.

Thanks,

-Smac

[smac97]

41 minutes ago, pogi said:

 Right, but there is already a law in place in this case which prohibits discrimination based on sexual orientation. 

I think the question is whether an anti-discrimination statute can be used in such a way that it violates the First Amendment, either as to Free Speech clause (in this case, compelled speech), or the Free Exercise clause, or both.

41 minutes ago, pogi said:

This business owner is suing for an exemption.  That can't be solved by the free market.  

I was speaking of the lawsuit specifically.  Rather, I was suggesting that a sort of Détente-style philosophy might be better in addressing these hot button issues as opposed to litigating them.  As for anti-discrimination statutes, they would be modified to provide exemptions pertaining to religious belief and free speech.

I think there is a win-win possible here.  

Thanks,

-Smac

[The Nehor]

It is clear that the intersection of free speech and lgbt issues is being exacerbated by for-profit wedding businesses suing and getting sued endlessly.

I have a solution: Ban weddings.

You are welcome.

[Calm]

11 minutes ago, smac97 said:

There is no shortage of, say, bespoke wedding cake makers who would be delighted to take money in exchange for making a gay wedding cake. 

If one assumes endless borders…but it needs to be within a reasonable distance and for a reasonable price to be fair. This may not be possible in many areas. Not everyone lives in densely populated areas or areas that have enough who don’t have an issue with same sex weddings and have decent skills. 

[The Nehor]

15 minutes ago, smac97 said:

There is no shortage of, say, bespoke wedding cake makers who would be delighted to take money in exchange for making a gay wedding cake.  No need to coerce someone who is resistant to speaking such things when there are so many others who are fine with speaking such things.

And if there were such a shortage would you change your opinion?

[smac97]

31 minutes ago, The Nehor said:

And if there were such a shortage would you change your opinion?

 Opinion about there being a win win? Probably.

[smac97]

35 minutes ago, Calm said:

If one assumes endless borders…but it needs to be within a reasonable distance and for a reasonable price to be fair. This may not be possible in many areas. Not everyone lives in densely populated areas or areas that have enough who don’t have an issue with same sex weddings and have decent skills. 

 Alas, if the options are to either use the coercive power of government to force someone to speak against their will versus someone not getting a wedding cake from a particular bespoke cakeshop I think the former think the latter should carry the day.

[Amulek]

1 hour ago, Calm said:

If one assumes endless borders…but it needs to be within a reasonable distance and for a reasonable price to be fair. This may not be possible in many areas. Not everyone lives in densely populated areas or areas that have enough who don’t have an issue with same sex weddings and have decent skills. 

There might certainly be markets where this could come into play - the dreaded one-bakery / one-flower-shop town come to mind.

But that doesn't really apply in this case (which is another good thing it has going for it). Website design has got to be one of the most border-less markets around.

Even if you constrain yourself to "wedding website designers," I don't see how someone could - with a straight face - try to pretend that this one, single lady out in Colorado has got the market cornered.

 

[The Nehor]

44 minutes ago, smac97 said:

 Opinion about there being a win win? Probably.

Nah, if there weren’t any hotelswedding cake shops that would serve Blackspeople with lgbt weddings.

[smac97]

9 minutes ago, The Nehor said:

Nah, if there weren’t any hotelswedding cake shops that would serve Blackspeople with lgbt weddings.

 I decline further conversation with you.

Edited February 23, 2022 by smac97

[The Nehor]

15 minutes ago, smac97 said:

 I decline further conversation with you.

I have heard that before.

[Amulek]

1 hour ago, The Nehor said:

And if there were such a shortage would you change your opinion?

The government is generally able exert more control over private actors when they have monopoly power because, under those circumstances, denying someone access to services effectively denies them access to the entire market. This was the reasoning used by the courts to justify the 'common carrier' rules that were put in place on cable companies years ago - which is why you get local channels from AT&T, Charter, Comcast, etc.

 

[Kenngo1969]

3 hours ago, The Nehor said:

It is clear that the intersection of free speech and lgbt issues is being exacerbated by for-profit wedding businesses suing and getting sued endlessly.

I have a solution: Ban weddings.

You are welcome.<

Hey, I wouldn't miss out on anything if your proposed solution were to come to pass!  .  There's a particular soup known as Italian wedding soup.  I joke that I like it because it's the closest I'll ever come to getting married.

[pogi]

17 hours ago, smac97 said:

 Alas, if the options are to either use the coercive power of government to force someone to speak against their will versus someone not getting a wedding cake from a particular bespoke cakeshop I think the former think the latter should carry the day.

You have to look at this in the larger context of how it would apply across the board.  Would ruling in favor of this business set precedence for private schools/colleges, pharmacies, grocery stores, food establishments, clothing stores, relator associations, rental properties, etc. to discriminate against LGBTQ people by not serving them?  Why is it morally ok to "let the free market work it out" for LGBTQ people, but not for people of race, religion, sex, and other protected classes?  Is the only difference that distinguishes them a legal technicality?  So let me ask the question then, why shouldn't an LGBTQ person be legally protected the same as a black person or a Latter-day Saint?  Is it the sin issue??? Well, some people view Latter-day Saints as sinners too (worthy of hell fire and damnation!!!), yet we are protected.  Denying someone the right to discriminate against blacks or Latter-day Saints is not the same as forcing them to say that they approve of us or support us morally.  Some people view blacks and Jews as sinners and cursed.  Some people have as much choice in their sexual orientation as they do in the color of their own skin.  What is the difference?

Why is it ok to "use the coercive power of government to force someone to speak against their will (not how I would frame the issue)" in regards to race, religion, disability, etc. in the context of a wedding cake, but not ok in this context?  Honestly, what is the difference other than personal bias?

 

Edited February 23, 2022 by pogi

[Calm]

20 minutes ago, pogi said:

why shouldn't an LGBTQ person be protected the same as a black person or a Latter-day Saint?

And if it is because it is viewed that it is behaviour that is discriminated against and that is okay because behaviour is a choice, then that applies to religion as well…religious behaviour is a choice.

[poptart]

28 minutes ago, pogi said:

You have to look at this in the larger context of how it would apply across the board.  Would ruling in favor of this business set precedence for private schools, pharmacies, grocery stores, food establishments, clothing stores, relator associations, rental properties, etc. to discriminate against LGBTQ people by not serving them?  Why is it morally ok to "let the free market work it out" for LGBTQ people, but not for people of race, religion, sex, and other protected classes?  Is the only difference that distinguishes them a legal ruling of what is protected and what is not?  So let me ask the question then, why shouldn't an LGBTQ person be protected the same as a black person or a Latter-day Saint?  Is the only difference that some people view gay marriage as sin??? Well, some people view Latter-day Saints as sinners too, yet they are protected.  Some people view blacks and Jews as sinners and cursed, yet they are protected.  Some people have as much choice in their sexual orientation as they do in the color of their own skin.  What is the difference, morally speaking?  

Why is it ok to "use the coercive power of government to force someone to speak against their will (not how I would frame the issue)" in regards to race, religion, disability, etc. in the context of a wedding cake, but not ok in this context?  Honestly, what is the difference other than personal bias?

 

Also, the backlash this will create.  Conservative families are in the minority, you have too many people running around now who are the product of disfunctional families, what you see now is a result of that plus poor societal choices.  I've seen it said here and elsewhere, conservative families have more kids.  That being said, they also depend on society a lot more than a single childfree person or couple does, LGBTQ or not.  Also, with the wave of people moving in they usually don't share the same needs nor politics, you really see it here now.  This is how you end up with political situations like you see in the west coast where the left really, really hates the right and takes every opportunity to take it out on them, legal and/or not.  White flight isn't an option for many families, many are being priced out of Utah and from what I hear Texas and the midwest is getting quite hostile and mean to outsiders, peoples options are getting slim and ugly.  

Here's what I was talking about with doxing incase anyone was curious.

Names of Douglas County teachers who rallied against school board members might be publicly released | Colorado Public Radio (cpr.org)

I appreciate your insight Pogi, as a hospice nurse you already get a lot of respect from me, that is such a hard job.  From what i've seen of your posts you almost always try to be the voice of reason and compromise without sacrificing your morals.  I can't help but not respect that.   I do try to keep in some good graces with the Christian religion here despite the horrible things I see from their followers in the USA nowadays.  As someone who is LGBTQ and has POC relatives, stuff like this is a huge deal to me.  

Edited February 23, 2022 by poptart