Here we go again, sort of. A graphic designer in Colorado is claiming a free speech right under the First Amendment to refuse to create websites for same-sex couples. The case is 303 Creative v. Elenis, and it’s is a variation on Masterpiece Cakeshop. v. Colorado (2018), which was the case of the baker who refused to bake cakes celebrating same-sex unions. The Supreme Court heard the oral arguments yesterday. I’m not entirely clear on the details, but on a first pass the case seems different from that of the baker. The baker was in the right, but the graphic designer may not be. Let’s review.
What happened before: Masterpiece Cakeshop. v. Colorado (2018)
I made my position clear with respect to the wedding cake case. The majority (7-2) was correct in upholding the right of a private business owner (a baker) to refuse to design one of his products (a cake) in a particular way (that celebrates gay marriage). But the majority copped out by ruling on the narrowest grounds imaginable — that the Colorado Civil Rights Commission during its consideration of the case had shown an anti-religious bias, and in speaking contemptuously of religion violated the Phillips’ rights to free expression. So they reversed the Commission’s decision in favor of the baker on this technicality, emphasizing that this case should not provide future guidance for courts that will face similar issues. They should have settled the issue once and for all, and there was one justice who did that in his concurrence: Neil Gorsuch.
Gorsuch took the baker’s case on its merits and rightly argued that Phillips was justified period in refusing designs for cakes — regardless of the Colorado Civil Rights Commission’s attitude towards him. The Commission had not only showed religious hostility; it had failed to recognize the more substantive point, that private business owners cannot be compelled to create a product that they object to on religious or moral grounds. Stunningly, the Commission had already acknowledged this very principle in its own treatment of three bakers who refused to bake cakes with anti-gay messages on them. The Commission, said Gorsuch, should have found in the Phillips’ favor, just as it had found in favor for the other three bakers. All four bakers were in the same situation. The three bakers refused to sell a cake that denigrated same-sex marriage, just as Jack Phillips refused to sell a cake celebrating same-sex marriage. Most crucially: The atheist bakers in the first case were happy to sell to persons of Christian faith, just as the conservative Christian baker in the second case was happy to sell to gay people. In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers. Gorsuch’s reasoning was correct. Business owners should not be compelled to artistic design, only to provide equal access to whatever they create. Whatever they sell, they must sell impartially and without discrimination. But they aren’t obligated to create something in the first place that goes against their religious or moral convictions. That’s what Gorsuch was saying in his concurrence, and that’s what should have been the unambiguous ruling in Masterpiece Cakeshop.
What’s happening now: 303 Creative v. Elenis
If Lorie Smith were a Jack Phillips analog, she would be objecting to the idea of creating a wedding website designed explicitly for a same-sex couple. But no one, least of all the state of Colorado, is requiring that of her to begin with. The law only says that once Smith has designed a wedding website, she must allow anyone, including same-sex couples, to purchase that product. She is not obligated to create a new template or speak or express in any way her support of same-sex marriage (just as the Supreme Court said the baker didn’t have to create cakes in such celebration). For that matter, she is well within her rights to create templates that condemn same-sex marriage, according to her religious views.
So what’s the problem? I don’t see her as having a case. (1) Jack Phillips was very clear that he sold his bakery products without discrimination, including to LGBT people (as he should), though he would not design or create products celebrating LGBT unions (as is his right). The Colorado Civil Rights Commission was forcing him to do the latter, and so the Supreme Court ruled in his favor. (2) Lorie Smith is saying that she refuses to design wedding websites for same-sex couples, but what does she mean by that? Colorado’s Anti-Discrimination Act (CADA) doesn’t require this of her to begin with. That law is modeled on the public accommodation law of the Civil Rights act of 1964, which requires
“All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, without discrimination on the ground of race, color, religion, or national origin.”
The CADA (state) public accommodation law extends this privilege to protect those of any gender or sexual orientation, meaning that LGBT people have the right to buy products, but not to demand that those products be tailored in a special way for them. So Lorie Smith isn’t being forced to “design websites for same-sex couples”, as she claims. What she really means is that she doesn’t want her template used by same-sex couples, and so she is simply not going to sell her product to them. But that’s wrong; a clear violation of public accommodation law. How consumers use or modify website templates on their own is their business.
So why is the Supreme Court even hearing this case? Or am I misunderstanding it?
UPDATE: I may have misunderstood the case, as I explain below in the comment dated December 10.
The Busybody 
> it was the kind of cake, not the kind of customer, that mattered to the bakers.
Yeah, this was the crux of the initial case back in the day. It was disappointing to see so many people completely miss the point on this. In this case, it would seem that she’s merely designing a website TEMPLATE, so I’m not sure what her problem is.
But idk, if I were a gay person who was refused service by this web designer, I would just leave a negative product review or something, and then take my business to the thousand other web designers who would be more amenable to me. Thankfully, we live in a time period where the majority of the country isn’t discriminatory towards immutable characteristics like that.
There’s a libertarian argument that a free market naturally leads to anti-discriminatory attitudes anyway. Being racist/sexist/etc is bad for business, especially as societal attitudes become more tolerant.
But idk, if I were a gay person who was refused service by this web designer, I would just leave a negative product review or something, and then take my business to the thousand other web designers who would be more amenable to me.
And as a bisexual, that’s what I would do as well. No skin off my back. Though I do believe anti-discriminatory laws about refusing service (based on the “kind of customer”, i.e. public accommodation laws) are reasonable.
I am completely with you on this one. I know in the case of the cake decorator, the gay couple specifically chose him knowing that he would refuse so they could sue him. They were basically trying to force their views down his throat.
I may have misunderstood the case. According to the former attorney who writes for The Atlantic, Lorie Smith has no problem selling her products or templates to same-sex clients, only that she will not design websites celebrating same-sex unions:
“The petitioner in the case, Lorie Smith, is a website designer who, according to her Supreme Court brief, intends to design custom wedding websites, but she refuses to design websites that advance ideas or causes she opposes. As a theologically conservative Christian, she opposes same-sex marriage and will not design websites celebrating gay weddings, though she says she would work with gay clients on other, non-same-sex-marriage websites.”
If that’s the case, then this case is indeed like the case of Jack Phillips the baker, and Lorie Smith is well within her rights to refuse to make custom websites advancing messages she disagrees with. But there’s a bizarre twist. The Tenth Circuit Court of Appeals agreed with this line of reasoning — that Lorie Smith was engaging in “pure speech” and thus Colorado cannot compel her speech — but it ruled against her anyway. Why? Because she has a monopoly:
“Because Smith possessed a monopoly over her own services, the state had a heightened interest in ensuring access to her work.”
As the Atlantic writer says, that’s not only bizarre reasoning (that seems to have been pulled out of nowhere), but a doctrine that would diminish the First Amendment rights of all artists who sell their art in the marketplace. Would this mean that every artist is subject to heightened state regulation?
If Lorie Smith is being compelled to create customized websites that celebrate same-sex unions (for whatever reason, whether because she should not “discriminate”, or because she has a “monopoly”), then that’s wrong, and the Supreme Court should rule in her favor, as it did (7-2) for the baker. If she is not being compelled to express or celebrate or participate in ideas that go against her beliefs, and she is simply refusing to sell her website templates to LGBT people because she doesn’t want her sites used in that way, then she’s wrong and in violation of public accommodation law, and the Supreme Court should rule against her. It’s hard to be sure of what the issue is with the conflicting reports.
She doesn’t have a monopoly over website design. The judge in this case is a fool. I would expect the court to rule in her favor 7-2, with Kagan joining the majority as she did in the cake baker case.
That’s what I’m predicting. Sotomayor and Jackson will be the likely dissenters.
The more I read the oral arguments, the more I’m convinced Smith is in the right, just like the baker was.