Supreme Court says First Amendment entitles web designer to refuse to do gay weddings

[Smiley McGee]

Link to the article here.

Assume this case has been followed closely by a number of participants here. Curious what your thoughts are on the broader potential social impacts of this ruling and any subsequent action you think the church will take in light of this ruling. 

Edited June 30, 2023 by Smiley McGee

[LoudmouthMormon]

I'm grateful to see SCOTUS draw the line at compelled speech.   The humans occasionally need to suppress or forbid certain speech, sometimes it's a good thing to punish people for saying things.  But when we start forcing people to do what they don't want to do, and punishing them for not doing what others want them to do, that's a most horrible line to cross.  Not just a slight move to totalitarianism/authoritarianism/fascism, but a pretty dang big move.  

(Hardest part of this principle for me personally, was when they stopped compelling students to say the pledge of allegiance.  But I have to grit my teeth and say yeah, the principle is pretty sound.)

[webbles]

Interesting fact: the majority opinion is 26 pages long, the dissent is 38 pages long.

I'm still reading the opinion, but I don't see how this would affect the church.  It looks like it would only affect a person or business that sells a creative thing to the general public but wants to limit what the possible outputs are.  The designer still must sell to everyone (including gay couples), but she isn't required to make wedding sites for them.  One thing in her favor was that both Colorado, her, and the 10th circuit all agreed that she was already selling to everyone, since she has not yet sold any wedding sites.

[Buckeye]

Exactly the result I predicted. As I mentioned on other threads, I fully support gay marriage and I believe this decision is correct. It is correct legally because speech cannot be compelled. It is correct as a matter of policy because compelled speech only creates martyrs and entrenchment. The more we have civil discussion and see through experience the fruits of gay marriages, the more society and church will come to embrace these wonderful families. 

[Buckeye]

18 minutes ago, LoudmouthMormon said:

 

(Hardest part of this principle for me personally, was when they stopped compelling students to say the pledge of allegiance.  But I have to grit my teeth and say yeah, the principle is pretty sound.)

I love the flag and pledge too. I was a scout leader at summer camp when NFL players had been in the news for kneeling. We had a few scout do the same during morning flag ceremony. Some leaders were incensed and wanted them kicked out.  But reason prevailed, no one was punished, and instead leaders that knew the boys engaged in loving dialogue to understand why. Most boys were back to saluting by the end of the week. There was no compulsion. 

[Pyreaux]

Well, if a private business can retain their first amendment rights, the conscience clause and not compel persons to affirm any particular beliefs, then it should protect churches too. It's the government that can't discriminate or deny equal protections to gay partners.

Edited June 30, 2023 by Pyreaux

[Calm]

2 hours ago, LoudmouthMormon said:

Hardest part of this principle for me personally, was when they stopped compelling students to say the pledge of allegiance. 

I hated saying the pledge of allegiance every morning whether I wanted to or not. It more likely decreased my sense of identity as an American.  It taught me patriotism was more about appearances and flag waving than actually caring about the country and people.  I rejoiced when it was discontinued in my school.

Edited June 30, 2023 by Calm

[Amulek]

Quote

Supreme Court says First Amendment entitles web designer to refuse to do gay weddings

I would probably characterize it as saying the Supreme Court held the First Amendment provides strong protection for speech creators, whether their motivations are religious or not. And that such protection holds regardless of whether the antidiscrimination law bans discrimination based on sexual orientation, religion, race, political belief, and so on. The Court reasoned that, if the Free Speech Clause were rejected here:

The government could require "an unwilling Muslim movie director to make a film with a Zionist message," or "an atheist muralist to accept a commission celebrating Evangelical zeal," so long as they would make films or murals for other members of the public with different messages. Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage.

I think it's pretty clear from the majority's opinion that the same reasoning should apply to other speech creators such as photographers, videographers, calligraphers, freelance writers, and the like (as well as performers such as wedding singers).

That being said, the opinion is narrow in the sense that it doesn't resolve what would happen to products or services that aren't traditionally speech but that may be seen as symbolic, such as flower arrangements and wedding cakes (viva la cake wars!).

Also, there's nothing in the opinion whatsoever that moves the needle even in the smallest degree with respect to businesses that provide non-speech goods and services (e.g, wedding venues, limousine drivers, caterers), so the sky isn't falling despite what you might hear from certain corners of the internet. The ruling was based strictly on the Free Speech Clause and not on the Free Exercise Clause, so feel free to ignore anyone who starts waxing dramatically about how this is going to open the door for religionists to start discriminating in all sorts of ways all across society. It won't. And that's a good thing.

 

[The Nehor]

18 minutes ago, Calm said:

I hated saying the pledge of allegiance every morning whether I wanted to or not. It more likely decreased my sense of identity as an American.  It taught me patriotism was more about appearances and flag waving than actually caring about the country and people.  I rejoiced when it was discontinued in my school.

This, the pledge was originally supposed to be a rare thing. The we forced kids to endlessly drone it and it became meaningless while convincing the rest of the world that we are a bunch of weirdos for making kids do this. They are probably right to do so.

[JarMan]

The court got this one right, but the affirmative action case only half right. Private actors should have the freedom to associate as they like. 

[provoman]

2 hours ago, JarMan said:

The court got this one right, but the affirmative action case only half right. Private actors should have the freedom to associate as they like. 

This case could potentially be disastrous - a sudden spike is people claiming to be "artist".

The overall principle I agree with, Government cannot compel speech. 

[Benjamin McGuire]

2 hours ago, JarMan said:

The court got this one right, but the affirmative action case only half right. Private actors should have the freedom to associate as they like.

The court got it wrong.

If you were to talk to any two people who were getting married, they would be astonished to discover that the wedding cake that they had ordered wasn't their own speech, but someone else's (so would their guests ...). The same is true for a website - it isn't the people who are getting married's website apparently - it isn't even their message - it is the message of the person who put the site together (so says the court). So when we buy something that involves even the smallest bit of creativity, the court has decided that it isn't simply buying a product, we are also buying the endorsement of its creator.

This is fine until we realize that it means that the same web designer can refuse to build wedding web pages for LDS members getting married in the temple, or an inter-racial couple getting married, or - really any group against which they have some sort of personal bias. As the dissent suggests, it is simply an excuse to promote an ideology.

[webbles]

12 minutes ago, Benjamin McGuire said:

The court got it wrong.

If you were to talk to any two people who were getting married, they would be astonished to discover that the wedding cake that they had ordered wasn't their own speech, but someone else's (so would their guests ...). The same is true for a website - it isn't the people who are getting married's website apparently - it isn't even their message - it is the message of the person who put the site together (so says the court). So when we buy something that involves even the smallest bit of creativity, the court has decided that it isn't simply buying a product, we are also buying the endorsement of its creator.

This is fine until we realize that it means that the same web designer can refuse to build wedding web pages for LDS members getting married in the temple, or an inter-racial couple getting married, or - really any group against which they have some sort of personal bias. As the dissent suggests, it is simply an excuse to promote an ideology.

The court didn't say that the website was "the message of the person who put the site together".  Instead, it focused on the fact that both Colorado and Ms. Smith and the 10th Circuit all agreed that Ms. Smith puts a ton of effort into the websites.  And so, even though it may combine with the speech of the customer, her part in the website is still her speech and thus protected.  It isn't saying that the "smallest bit of creativity" means "we are also buying the endorsement of its creator".

I think the problem with this case is the definition of designing a website.  In same situations, a website really is just a basic product that you buy and then fill out.  Think of sites built using WordPress or Wix.com.  In other situations, the creator/designer puts a ton of work into it.  They'll create new fonts, new logos, new color schemes, new images, etc.  In the later, the website definitely includes the designer's speech.  In the former, the designer is non-existent.  Ms. Smith (as agreed by Colorado and the 10th Circuit) is in the later group.  I doubt Wix.com would win a similar case since the websites that it "designs" are almost entirely designed by the customer.

The last example in the dissent (the one about Cynthia and Sherry and their headstone) should be an example of the former and not have free speech issues.  The few times I've been involved in headstones selection have felt like a Wix.com process.  I'm given a pamphlet where I can pick the font, the images, and enter the text.  The headstone company just takes my request and puts it on the stone.  They don't do any additional designing or changes to what was stipulated.  I don't see that similar to what Ms. Smith (and Colorado) says she does.  And so the headstone company that Sherry selected should have been required to put on the words that Cynthia requested in her will.

[JarMan]

2 hours ago, Benjamin McGuire said:

The court got it wrong.

If you were to talk to any two people who were getting married, they would be astonished to discover that the wedding cake that they had ordered wasn't their own speech, but someone else's (so would their guests ...). The same is true for a website - it isn't the people who are getting married's website apparently - it isn't even their message - it is the message of the person who put the site together (so says the court). So when we buy something that involves even the smallest bit of creativity, the court has decided that it isn't simply buying a product, we are also buying the endorsement of its creator.

This is fine until we realize that it means that the same web designer can refuse to build wedding web pages for LDS members getting married in the temple, or an inter-racial couple getting married, or - really any group against which they have some sort of personal bias. As the dissent suggests, it is simply an excuse to promote an ideology.

I’m ok with someone refusing to do business with anyone. I don’t care if it’s because they’re gay, Mormon, white, black, furry, woman, trans, diabetic, nazi, old, obese, left-wing, right-wing, tattooed, rich, Canadian, or any other reason whatsoever. True freedom allows for all discrimination, even the kinds we don’t personally like…especially the kind we don’t like. Discrimination, after all, is simply freedom of association. 

[JarMan]

2 hours ago, provoman said:

This case could potentially be disastrous - a sudden spike is people claiming to be "artist".

The overall principle I agree with, Government cannot compel speech. 

It doesn’t matter to me whether something is art or speech or any other variation on that theme. People should be able to associate with whomever they like, including not associating for any reason good or bad. This includes business associations. 

[Benjamin McGuire]

7 hours ago, webbles said:

The court didn't say that the website was "the message of the person who put the site together".  Instead, it focused on the fact that both Colorado and Ms. Smith and the 10th Circuit all agreed that Ms. Smith puts a ton of effort into the websites.  And so, even though it may combine with the speech of the customer, her part in the website is still her speech and thus protected.  It isn't saying that the "smallest bit of creativity" means "we are also buying the endorsement of its creator".

And I am saying that this is wrong. It isn't her speech. At all. And this is what the dissenting opinion points out.

Suppose, for example, that you are the Christian owner of a vanity press. You publish biographies for people. A gay man provides you with his manuscript, and you refuse on the basis that he is gay. Despite the amount of effort you many need to put into publishing this book, you aren't protected by this ruling. Even though it involves substantial work, you couldn't refuse that work just because the man is gay. And, just as with the wedding website, there isn't anyone who would confuse that man's biography with speech on the part of the publisher.

7 hours ago, webbles said:

I think the problem with this case is the definition of designing a website. 

No, it isn't.

7 hours ago, webbles said:

In same situations, a website really is just a basic product that you buy and then fill out.  Think of sites built using WordPress or Wix.com.  In other situations, the creator/designer puts a ton of work into it.  They'll create new fonts, new logos, new color schemes, new images, etc.  In the later, the website definitely includes the designer's speech.  In the former, the designer is non-existent.  Ms. Smith (as agreed by Colorado and the 10th Circuit) is in the later group.  I doubt Wix.com would win a similar case since the websites that it "designs" are almost entirely designed by the customer.

I am suggesting that this is entirely irrelevant. And you aren't beginning to address my point - which is - no one who looks at that website is going to understand that speech as being a blend of the website's creator and the material in the site. When I open a website (and many of the ones that I use are very complicated and took a tremendous amount of effort), I never look at that website and consider it to be a work of speech on the part of the individuals (or companies) that produced it. At most, I would consider it work-for-hire - a concept which generally precludes this idea of speech. And if it isn't speech, then it cannot be protected speech. So this distinction that you are trying to make is hollow - about the amount of effort that is involved.

[Benjamin McGuire]

6 hours ago, JarMan said:

I’m ok with someone refusing to do business with anyone. I don’t care if it’s because they’re gay, Mormon, white, black, furry, woman, trans, diabetic, nazi, old, obese, left-wing, right-wing, tattooed, rich, Canadian, or any other reason whatsoever. True freedom allows for all discrimination, even the kinds we don’t personally like…especially the kind we don’t like. Discrimination, after all, is simply freedom of association. 

And the government, and the Supreme Court is not okay with your personal take on this. So this is irrelevant to this discussion. The Court here is just making the claim that the right to being compelled to speak is more important in our society than the right to not be discriminated against, and as long as you can make an appeal to your right to say whatever you want to say, then you can discriminate all you want. Historically, the Supreme Court has determined that you can have all the freedom of association that you want as long as it remains within the personal spheres. The moment you enter the market or governmental spheres, you are obligated to associate with those you don't want to. A county clerk cannot claim on the basis of freedom of association that they do not have to provide the gay couple with a marriage license. A business open to the public cannot refuse to serve people on the basis of their belonging to a suspect class. The Supreme Court has already determined that this is more important than the freedom of association.

[The Nehor]

6 hours ago, JarMan said:

I’m ok with someone refusing to do business with anyone. I don’t care if it’s because they’re gay, Mormon, white, black, furry, woman, trans, diabetic, nazi, old, obese, left-wing, right-wing, tattooed, rich, Canadian, or any other reason whatsoever. True freedom allows for all discrimination, even the kinds we don’t personally like…especially the kind we don’t like. Discrimination, after all, is simply freedom of association. 

So back to the “No Blacks allowed” signs outside of businesses? Probably “No Blacks or LGBTs or Wokesters” to update. Maybe add “No Irish” for those who want to honor their heritage.

[Buckeye]

2 hours ago, Benjamin McGuire said:

And I am saying that this is wrong. It isn't her speech. At all. And this is what the dissenting opinion points out.

Suppose, for example, that you are the Christian owner of a vanity press. You publish biographies for people. A gay man provides you with his manuscript, and you refuse on the basis that he is gay. Despite the amount of effort you many need to put into publishing this book, you aren't protected by this ruling. Even though it involves substantial work, you couldn't refuse that work just because the man is gay. And, just as with the wedding website, there isn't anyone who would confuse that man's biography with speech on the part of the publisher.

No, it isn't.

I am suggesting that this is entirely irrelevant. And you aren't beginning to address my point - which is - no one who looks at that website is going to understand that speech as being a blend of the website's creator and the material in the site. When I open a website (and many of the ones that I use are very complicated and took a tremendous amount of effort), I never look at that website and consider it to be a work of speech on the part of the individuals (or companies) that produced it. At most, I would consider it work-for-hire - a concept which generally precludes this idea of speech. And if it isn't speech, then it cannot be protected speech. So this distinction that you are trying to make is hollow - about the amount of effort that is involved.

In your transcript scenario, under 303 the press cannot refuse publication because of the authors identity but could potentially refuse if they are opposed to the  message conveyed in the transcript. I could see narratives of a gay life that a traditional Christian would publish and others they would not. And, of course, many Christian’s (perhaps most now) support gay marriage. 
 

The point is the message. Services that are not message-based - say, hotel rooms, bowling alleys, fast food - those are unchanged by this decision. Services that are highly message-based -say, your manuscript example or an advertising company - those are given a right of refusal based on conscience under 303. That’s how it should be. A Jewish press should not have to publish a white nationalist diatribe. 

Will there be grey areas? Yes, that’s always the case. But I recommend against jumping to the conclusion that this is a sea change. Recall when Obergfell issued (2015) there were many religious people worried the decision would be used to cut them out of society. J. Kennedy spent a lot of ink in the decision promising that would not happen. The worry was understandable and real but didn’t materialize. With 303, I sense a similar understandable and real worry from the LGBT community, but believe it will also not prove out. I wish J. Gorsuch spent as much time on that front as Kennedy did in his opinion. 

Edited July 1, 2023 by Buckeye

[Dario_M]

These kind of topics are always a sensitive thing. Here on the forum, but also in Real Life. Well... it may be clear what my opinion is about these kind of matters... If have expressed those feelings aften enough.

[CV75]

12 hours ago, Benjamin McGuire said:

The court got it wrong.

If you were to talk to any two people who were getting married, they would be astonished to discover that the wedding cake that they had ordered wasn't their own speech, but someone else's (so would their guests ...). The same is true for a website - it isn't the people who are getting married's website apparently - it isn't even their message - it is the message of the person who put the site together (so says the court). So when we buy something that involves even the smallest bit of creativity, the court has decided that it isn't simply buying a product, we are also buying the endorsement of its creator.

This is fine until we realize that it means that the same web designer can refuse to build wedding web pages for LDS members getting married in the temple, or an inter-racial couple getting married, or - really any group against which they have some sort of personal bias. As the dissent suggests, it is simply an excuse to promote an ideology.

It is the message the artist is choosing to parrot. 

[Stormin' Mormon]

4 hours ago, Benjamin McGuire said:

Suppose, for example, that you are the Christian owner of a vanity press. You publish biographies for people. A gay man provides you with his manuscript, and you refuse on the basis that he is gay. Despite the amount of effort you many need to put into publishing this book, you aren't protected by this ruling. Even though it involves substantial work, you couldn't refuse that work just because the man is gay. And, just as with the wedding website, there isn't anyone who would confuse that man's biography with speech on the part of the publisher.

I'm not sure that this example supports your arguments. Publishers have rejected manuscripts with messages that they've disagreed with for as long as there has been a free press, and done so without controversy. It doesn't matter, like at all, if the public wouldn't be confused about who originated the message because free speech is as much about carrying the message, as it is about originating it.

I once again cite Wooley v Maynard, decided 45 years ago, so not a new precedent by any means. The Court ruled that the state could not compel the Maynards to display the state motto on their license plate. There was absolutely no confusion about who originated the message, and yet the Court ruled that this was a case of compelled speech. 

I don't see how 303 could have been ruled other than it was without overturning Wooley. And while overturning precedence is not, uh, unprecedented, the ruling in 303 maintains this long-standing status quo; it has not created a wholly new free speech regime.

[webbles]

5 hours ago, Benjamin McGuire said:

And I am saying that this is wrong. It isn't her speech. At all. And this is what the dissenting opinion points out.

It is her speech.  Here's a quote from the 10th Circuit of Appeals (page 21) which the majority agreed to and the dissent never challenges: "Appellants’ creation of wedding websites is pure speech."  Colorado also never argues against that.

The dissent (and the majority in the 10th Circuit of Appeals) argue that just because it is her speech, she can still be compelled to state something that she doesn't agree to.  The majority argue that her speech is protected.

 

5 hours ago, Benjamin McGuire said:

Suppose, for example, that you are the Christian owner of a vanity press. You publish biographies for people. A gay man provides you with his manuscript, and you refuse on the basis that he is gay. Despite the amount of effort you many need to put into publishing this book, you aren't protected by this ruling. Even though it involves substantial work, you couldn't refuse that work just because the man is gay. And, just as with the wedding website, there isn't anyone who would confuse that man's biography with speech on the part of the publisher.

This doesn't sound like anything that Ms. Smith is going to do.  I have no experience hiring a vanity press but I'm pretty sure that they don't change the text.  They don't pick the images that go in the book.  They might decide on the font, but I'm assuming the customer has a say in it.  The work to publish the book isn't speech.

Ms. Smith, on the other hand, is closer to a ghostwriter.  The customer comes to her, gives her pictures, tells their story, and then she takes that and builds a custom website.  She selects the text that will be shown, the images that will be shown, etc.

5 hours ago, Benjamin McGuire said:

I am suggesting that this is entirely irrelevant. And you aren't beginning to address my point - which is - no one who looks at that website is going to understand that speech as being a blend of the website's creator and the material in the site. When I open a website (and many of the ones that I use are very complicated and took a tremendous amount of effort), I never look at that website and consider it to be a work of speech on the part of the individuals (or companies) that produced it. At most, I would consider it work-for-hire - a concept which generally precludes this idea of speech. And if it isn't speech, then it cannot be protected speech. So this distinction that you are trying to make is hollow - about the amount of effort that is involved.

You seem to be focused on the "publishing" part but this case has nothing to do with publishing.  As I mentioned earlier, it is closer to a ghostwriter or even a speechwriter.  When you listen to a speech, do you think about who wrote the speech?  Does it really matter to the listener?  But the speechwriter's speech is definitely there even though no one knows that they wrote it.

Edited July 1, 2023 by webbles

[Benjamin McGuire]

8 hours ago, Buckeye said:

A Jewish press should not have to publish a white nationalist diatribe. 

I don't disagree. But this isn't what is being covered here. The thing that you are missing is that you can refuse lots of stuff on lots of grounds - you just couldn't refuse stuff on the basis of a protected class until this decision. That is, you can refuse stuff because of the message. You can't refuse it because of the person's race, or religion, or gender, or any other protected class. This is why you couldn't refuse someone service because they were white, or black, or Jewish or Asian. But you could refuse something because of the message as long as it didn't correspond uniquely to that protected class.

8 hours ago, Buckeye said:

Will there be grey areas? Yes, that’s always the case. But I recommend against jumping to the conclusion that this is a sea change.

Did you read the dissent? Allow me to quote a bit from it:

Quote

Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.

That is, I think, by definition, a sea change.

8 hours ago, Buckeye said:

With 303, I sense a similar understandable and real worry from the LGBT community, but believe it will also not prove out. I wish J. Gorsuch spent as much time on that front as Kennedy did in his opinion. 

The reason why it won't prove out is not because it won't be tried but because this is going to end up right back in front of the Supreme Court under a context that isn't so connected to views on issues over which even the court is strongly divided. But to think that this won't be used in a variety of different contexts is, I think, naive.

[Benjamin McGuire]

6 hours ago, CV75 said:

It is the message the artist is choosing to parrot. 

Parrot's however, don't have a message of their own. Imitation is not speech. It may look like speech. It may sound like speech. But, speech has to meet certain requirements to even be considered speech. On a similar note, we wouldn't consider what an AI spits out to be speech - in part because we haven't decided that algorithms can actually be authors, or that they can mean something when they produce text (or audio).