The U.S. Supreme Court is considering a case, 303 Creative LLC v. Elenis, which a merchant’s refusal to service a gay wedding against Colorado’s law forbidding business from discriminating against people based on sexual orientation. As the New York Times reported,
The Supreme Court is hearing arguments on Monday [12/5/22] in a First Amendment battle pitting claims of religious freedom against laws prohibiting discrimination on the basis of sexual orientation.
A web designer in Colorado, Lorie Smith, 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. A state law forbids this kind of discrimination.
According to the New York Times, this is a Case Pitting Gay Rights Against Religion.
But it is no such thing. The web designer, Lorie Smith, has the fundamental right to live by her own conscientious convictions, just as the gay couple does by marrying each other. The gay couple, however, does not have the right to force Smith to service their wedding against her will.
So, there is no conflict of rights. Smith is violating no one’s rights. She does not have the power to prevent the wedding, or to prevent the gay couple from getting the service from another designer, or doing it themselves (if they are capable), or, for that matter, of having the wedding ceremony.
Justice Sonya Sotomayor, the Times reports, objected that the same premises would, “in essence . . . enable discrimination of all kinds. So there is no line on race, there is no line on disability, ethnicity, none of the protected categories,” Sotomayor observed. In essence, she’s right. But such discrimination, though morally despicable, would be a private matter between free individuals. Discrimination should only be banned for the government in the execution of its laws and policies. It is not up to the government to legally bar private discrimination. That is up to private individuals acting in their capacity as members of the culture. Social pressure, such as public shaming through free speech and press, marginalization, isolation, and boycotts of the offending enterprise, or simply ignoring the discriminator is the way irrational, immoral discrimination is opposed and minimized. America could never have been racially segregated without government force, in the form of Jim Crow laws. Culture alone could not do it. Indeed, racists turned to law to enforce segregation in the South because they couldn’t impose it privately and voluntarily. This is not to say racism didn't exist. It is to say racism doesn't have the power without government force. It is no accident that the color barrier in major league baseball was broken in the North, by private individuals from both the National and American leagues: There were no Jim Crow laws to forbid it.
Personally, I think Smith’s action is despicable. Ancient religious dogma is no justification for bigotry. And yes, a SCOTUS decision in Smith’s favor could have ramifications far beyond this case, involving all laws infringing the private right to discriminate. Forcing business owners to serve customers it chooses not to is involuntary servitude, a form of soft slavery. The 13th Amendment explicitly outlaws such servitude, as it should—regardless of how that Amendment has been miss-interpreted and/or ignored to justify the outlawing of private discrimination.
To be sure, Smith’s lawyers have narrowly defined her case as one of freedom of speech. The Times explains:
At the heart of the case the Supreme Court is hearing on Monday is a First Amendment principle that the government cannot force people to express ideas against their will, and how it applies to a website maker who wants to be able to sell wedding site services to heterosexual couples but not same-sex couples — despite a Colorado anti-discrimination law.
Under what is known as the compelled speech doctrine, the First Amendment’s free speech protections extend beyond generally keeping the government from suppressing people from saying what they want: It also generally bars the government from compelling people to express things they do not want to say.
That the First Amendment supports the ban on compelled speech is certainly of monumental importance. But the broader principles behind Smith’s case go beyond religion and free speech.. Why should only religious objections be considered? Religion has no monopoly on moral values. More broadly, freedom of association, also explicitly guaranteed by the First Amendment—and the related freedom of contract—is clearly at stake here, as much as freedom of religion/conscience and speech.
There is a lot at stake in this case, and it will be interesting to see how the Conservative-dominated court decides and, more crucially, its reasoning. But one thing is certain: The case does not involve any conflict of rights. The solution is the consistent, equal application and protection of the individual rights of all. Thomas Jefferson eloquently identified the heart of the rights issue: "It does me no injury for my neighbor to say there are twenty gods or no god. It neither picks my pocket, nor breaks my leg."
Offensive? Definitely. Outrageous? Absolutely. But Lorie Smith is neither picking anyone’s pocket nor breaking anyone’s leg. Put another way, she is initiating neither fraud nor force against gay couples. The gay couple incurs no injury for Smith not agreeing to providing the service they requested. Indeed, the shoe is on the other foot: It is they, and the anti-discrimination law in question, are the one's who want to inflict injury on Smith, violating her rights. *
Jefferson uttered those words in the context of defending religious liberty rights. But the principle applies to all fundamental inalienable rights. Gay rights are not at issue here. Gay rights were at the heart of the fight to overturn laws banning gay marriage. There is no gay “right” to force involuntary servitude on a web designer, or anyone else.
* [It should be noted that the gay couple is hypothetical. Smith has not actually launched her business yet, CATO reports, and has not actually refused to service any gay wedding.]
Related News Coverage, presented only as an FYI:
Supreme Court seems to side with web designer opposed to same-sex marriage by Robert Barnes for The Washington Post, 12/5/22
Web designer’s case may impact same-sex marriage itself by Taylor Jung for NJ Spotlight News --[This headline is highly misleading, to put it mildly. Whatever the ruling, the case will not impact the institution of same-sex marriage in any way.]
Supreme Court Debates Whether Web Designers Can Be Forced To Make Gay Wedding Pages by Scott Shackford for Reason
Related Reading:
Freedom, not Laws, is the Answer to Defeating Bigotry
Individual Rights is the Solution to the Gay Marriage Conflict
Gay Marriage, Freedom of Association, and Equal Protection of the Law
Does rescinding laws banning private discrimination make a moral statement in support of bigotry?
Gay Marriage: The Right to Voluntary Contract, Not to Coercive “Contract” by me for The Objective Standard
The False Alternative of Religious Rights vs. Gay Rights—Michael J. Hurd
‘Bigotry Motivated by Religion is Still Bigotry’—True, but Still an Individual Right
Court Violates Cake Baker’s Right Not to Serve Gay Weddings—Ari Armstrong for The Objective Standard
Arizona Governor's "Religious Freedom" Veto Was the Right Move
Two Views on Religious Exemptions from Anti-Discrimination Laws
Kim Davis vs. Liberty Ridge Farm
Title 2: Government vs. Private Action
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