I recently read an Associated Press article titled “Justices spar in latest clash of religion and gay rights.” As a gay Coloradan who cares deeply about the rights of Americans, I felt compelled to clarify the situation.
It’s clear that the media desires to portray the current Supreme Court case of 303 Creative LLC vs. Elenis as a zero-sum game between gay rights and religious liberty. Such a showdown makes for excellent clickbait, outrage, and controversy. This rhetoric, however, represents a terrible mischaracterization of the case.
At its core, the 303 Creative vs. Elenis case has very little to do with the strawman of gay rights and everything to do with the First Amendment and its protected freedoms of religion, speech, and expression.
The First Amendment not only limits the government from punishing a person for speech, but it also prevents the government from punishing a person for refusing to advocate for or promote the government’s approved messages. Numerous court cases have found that government-compelled speech is unconstitutional. For example, a state cannot force children to recite the Pledge of Allegiance (West Virginia State Board of Education v. Barnette).
If 303 Creative can be forced by the State of Colorado to promote certain messages through its custom creative websites (in this case the message happens to be the promotion and celebration of gay weddings), then any business owner who provides custom messages or creative work can be forced to endorse any position of a customer they don’t agree with.
For example, a Muslim-owned bakery that creates cakes with custom image printing would have to create cakes with an image of God, though such a depiction is fundamentally against Islam. Gay-owned public relations firms would have to create websites and campaigns for Christian groups or churches that exclusively promote heterosexual marriage and even condemnation for homosexuals. A Jewish filmmaker who takes requests from the public would have to produce promotional content for a Palestinian group that supports the expulsion of Jews from Israel.
If these business owners didn’t comply, they could be fined or jailed by the government for violating public accommodation laws.
Do these examples sound like justice to you?
While the core of this case is compelled speech, Colorado Attorney General Phil Weiser is making the claim that people are being denied “access to a product or service based on who they are,” in violation of public accommodation laws.
If 303 Creative, for example, rented chairs for weddings and refused to rent to a gay wedding, or if Masterpiece Cakeshop – another Colorado business under fire – refused to sell baked goods to gays, that would likely violate accommodation laws, just like Jim Crow Era lunch-counter racial segregation.
However, the business owners here have expressed and demonstrated their willingness to conduct business with all people. They just won’t sell custom baked goods with messages that conflict with their personal beliefs.
In other words, they are happy to let anyone sit at their lunch counter, there are just certain types of sandwiches they won’t make for anyone, regardless of that customer’s individual background.
No customer is being refused service because of who they are. These business owners are simply declining the creation of certain messages due to their deeply held beliefs.
The law should offer equal protection for the equal individual rights of all citizens. Forcing individuals to say things and sell things they don’t want to is no “civil right” – it is a travesty.
That’s why this case is so important for my rights. A loss for 303 Creative would result in an even greater trampling of speech, creation, and expression for millions of Americans – including gay Americans like me.
I am hopeful that the Supreme Court will once again protect and uphold individuals’ rights to not have speech forced upon them by the government.
Garrett Mayberry lives in Arvada.
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