I don’t know how Colorado became ground zero for butchers (presumably) and bakers and wedding website makers to claim that it should be legal for a public-accommodation business — meaning a commercial business open to all — to discriminate against same-sex couples.
But here we are once again in the middle of a case designed to chip away at the rights of same-sex couples. Yes, same-sex couples can legally be married now — and Congress is expected to further cement that right this week — but that apparently doesn’t mean they’re necessarily entitled to the same services as everyone else.
Many of us remember the Masterpiece Cakeshop case, which went to the Supreme Court five years ago. Jack Phillips, the baker, claimed that making a wedding cake for a same-sex couple violated his religious beliefs and that Colorado’s anti-discrimination law denied him, as a baker-cum-artist, his First Amendment rights of free expression.
The justices at the time agreed with Phillips, but on very narrow grounds, leaving the basis of the case — whether bakers-cum-artists can, in fact, turn away same-sex customers simply because they want a wedding cake — for some future court to determine. In other words, the justices punted.
And today’s court — the ultra-conservative, McConnell-Trump Supreme Court, the all-too-recent conqueror of Roe v. Wade — happily and predictably took the punt, and after Monday’s oral arguments, seems poised to return it for a touchdown for the discriminators.
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In this case, it’s a web designer, Lorie Smith, who wants the court to rule whether Colorado could hypothetically — we’ll get to the hypothetical issue in a minute — force her to create a website for a same-sex marriage even though she objects to such marriages on religious and moral grounds. And if she were forced to do so, she argued, that would allow Colorado to deny her the freedom of expression guaranteed in the First Amendment.
This case, we were told repeatedly, is not about religion and not about the LGBTQ community — which is still recovering from the shock of the Club Q murders — but about compelled speech. It just so happens that the designer, like the baker, opposed same-sex marriage on religious grounds and that both parties were represented by Alliance Defending Freedom, a conservative Christian group.
As for the hypothetical, well, Smith doesn’t actually design wedding websites yet. She is looking to get a ruling before anyone’s rights have been challenged, before there is a victim in the case, before anyone has been discriminated against, before the specifics of an actual case could be determined, so she’ll know if she’s breaking the law in case she ever does make wedding websites. And maybe because, we’re told by the experts, not having an actual victim of discrimination seems to make it a lot easier for justices to take away hypothetical rights.
In fairness, Smith says she has long wanted to design wedding websites.
Also in fairness, many same-sex couples may have long wanted to announce their wedding plans on a website.
If it sounds complicated, it’s not. Not unless you believe, say, those Jim Crow laws — which were often defended on religious grounds, claiming that the Bible tells us that races shouldn’t mix — that didn’t allow Blacks to eat at a Woolworth’s counter were also constitutional. I mean, if a baker can qualify as an artist, why not a short-order cook?
Public accommodation laws say that a service or good that is offered to the public must be offered to the entire public.
As liberal Justice Sonia Sotomayor pointed out, without apparent effect on the conservative majority, that a ruling for the website maker “would be the first time in the court’s history that it would say … a commercial business open to the public, serving the public, could refuse to serve a customer based on race, sex, religion or sexual orientation.”
She stressed the issue of people with disabilities who could be denied, say, a wedding website on moral or religious grounds. We could go on. Muslims, Buddhists, Jews, Blacks, Black Santas, Hindus, pagans, Wiccans. And, while we’re at it, Christians, too.
Let me allow constitutional scholar Erwin Chemerinsky, who’s also the dean of Berkeley Law School, to explain, as he did at the time of the Masterpiece case.
“All antidiscrimination statutes pose a tension between equality and liberty. Any law that prohibits discrimination — whether based on race or sex or religion or sexual orientation or any other grounds — denies the freedom to choose who to serve or to hire. Indeed, this was a key objection to the Civil Rights Act of 1964, which prohibits places of public accommodation from discriminating based on race and forbids employers from discriminating based on race, sex, or religion: The law interferes with the freedom to choose one’s customers or employees. Congress and the courts both deemed ending discrimination to be more important than protecting the right to discriminate.”
But if this court rules as expected, that won’t always be the case any longer.
Here’s one thing I learned: If you listened to the arguments, you would know why the Supreme Court doesn’t want cameras in their chambers. If a large audience had watched and heard Justice Sam Alito joking about Black kids in Ku Klux Klan outfits, then there would have been real outrage, instead of the minor outrage we’re hearing now.
Meanwhile, Colorado’s own contribution to the Supreme Court, Justice Neil Gorsuch, tried to get Colorado Solicitor General Eric Olson to agree with him that the state had required Phillips, the Masterpiece Cakeshop baker, to go through a straight-out-of-the-Gulag “reeducation training program.”
As Olson pointed out, Phillips was required to familiarize himself with Colorado’s public accommodation law.
It was that kind of day, one more in which a Supreme Court that seems out of touch with the times will be forced to defend another backward-looking ruling.
It was a day that a majority of justices seemed to agree that in the web designer case, gay rights and same-sex marriage were not the issue, but rather, the message that the designer would be forced to create. This issue extended, it was argued, to the designer’s message even if — you should read this carefully — it were identical to one she would create for a straight couple. Yes, identical.
Am I missing something — or how is that not about being gay? Is the artistry so compelling that the viewer could intuit that the designer’s creation, even if identical, was a state-enforced affirmation of same-sex marriage?
It’s not so long ago that discrimination by race and religion were perfectly legal in many states. This is dangerous territory, not that you heard any of that from the court’s majority, which should give us a ruling sometime in June, unless, of course, someone leaks a draft earlier.
But in any case, the safe way to bet on this Supreme Court is to take Sotomayor’s warning to heart — and figure that this won’t be the last decision to fall under the category of the “first time in the court’s history.”
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