Can the state force a custom website designer to design a website for customers even if the merchant does not want to? In 303 Creative v. Elenis, the Supreme Court said no.
This is a good rights-affirming ruling. The case was brought by Lorie Smith, the owner of 303 Creative, who, because of her Christian beliefs, didn’t want to design a wedding website for a same-sex couple. The case was decided on First Amendment grounds based on “compelled speech” doctrine. Compelled speech doctrine holds that the First Amendment prohibits anyone from being forced to say anything that she does not want to say. Megan McArdle explains in The Washington Post:
On the legal merits, the decision is correct; it would be hard to square a different ruling with previous high court jurisprudence that has affirmed broad rights of individual expression, including protections against compelled speech. (See, for example, National Institute of Family and Life Advocates v. Becerra, in which the court ruled that California could not force crisis pregnancy centers to provide information about how to obtain abortions.) Government attempts to compel speech need an overwhelming rationale, and the court ruled that Colorado’s law doesn’t provide a sufficient one.
But there are other reasons to applaud the Supreme Court’s ruling. Article I, Section 10, Clause 1 of the U.S. Constitution protects the sanctity of contracts. A contract is a mutually voluntary agreement. That’s what sanctifies contracts. A contract isn’t legitimate unless both sides agree. Lorie Smith has every right not to enter a contract. The rights of the same-sex couple seeking to contract with Smith are not violated any more than the rights of Christians who oppose same-sex marriage are violated by legalization of same-sex marriage. There is no “”right” to force a contract on others. A forced contract is a contradiction in terms. Freedom of contract is in fact a derivative of the right to freedom of association, which is one of the First Amendment’s five key individual rights.
The other reason stems from the 13th Amendment to the Constitution, which prohibits both slavery and involuntary servitude. Clearly, forcing Smith to design a website against her will is involuntary servitude. Please don’t remind me that designing a website is nothing like the brutality faced by slaves on Southern slave plantations. No, it’s not. But the principle still applies. The 13th Amendment makes no distinctions regarding degree. It states simply, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States.” This means that involuntary servitude in any degree or on any level, other than the exception noted,* is outlawed. Note that there is no exception regarding anti-discrimination law.
At this point, let me state unequivocally that I find the web designer’s refusal to serve the gay couple abhorrent. But this is about individual rights. It’s not about some alleged “right” to force Smith to do the work. It’s about her right not to. Her refusal does not in any way, shape, or form “roll back LBGTQ+ rights”—as the Left frames it—since no one has the “right” to force Smith, even by law. This is not a gay rights case. This is an equal individual rights case. In this case, on multiple levels, individual rights were upheld against a tyrannical state.
* [The exception is a point of contention because of the possibility of abuse.]
Related Reading:
Contra the NY Times, a SCOTUS Case Does Not ‘Pit Gay Rights Against Religion’
Gay Marriage: The Right to Voluntary Contract, Not to Coercive “Contract”
Does rescinding laws banning private discrimination make a moral statement in support of bigotry?
The False Alternative of Religious Rights vs. Gay Rights—Michael J. Hurd
Kim Davis vs. Liberty Ridge Farm
Court Violates Cake Baker’s Right Not to Serve Gay Weddings—Ari Armstrong for The Objective Standard
‘Bigotry Motivated by Religion is Still Bigotry’—True, but Still an Individual Right
Others’ Opinions:
CON: I’m not a lawyer. But I see what the same-sex wedding website case will mean.
PRO: In the court’s ruling on gay wedding websites, free speech won
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