As I’m reading the opinions, there are a few nuggets here or there that I find interesting.
One such is Sotomayor’s dissent stating: "A website designer could equally refuse to create a wedding website for an interracial couple, for example. How quickly we forget that opposition to interracial marriage was often because “‘Almighty God . . . did not intend for the races to mix.’” Loving v. Virginia, 388 U. S. 1, 3 (1967).
I am deeply saddened that the arguments made by the bigots in the past (and almost universally rejected by the courts) about racial discrimination are now acceptable because they are about gender/sex/sexual orientation discrimination.
Why should she be compelled to create a website expressing support for interracial marriage? If a web designer was asked to create a website opposing interracial marriage, she should absolutely have the right to refuse that business. In the reversed situation, the web designer is receiving the same freedom.
For your question “Or the snooty restaurant whose chef will declare I can’t prepare special meals for couples of color?”, what is you belief on how future discrimination may be enabled? A possible interpretation is that you’re saying that you believe the Supreme Courts ruling enables a chef, on the basis of her religion, to serve a set menu to white customers but refuse to serve that same menu to non-white customers? That’s probably a strongly contrarian interpretation of what you’re trying to say, but that would still be illegal under Colorado anti-discrimination law and the Supreme Court ruling wouldn’t alter that. On the other hand, suppose the chef was happy to create special request European cuisine dishes, but refused to create special request African cuisine dishes. Even if the chef’s reason for refusing to create the African dishes was flagrantly racist, she would still be protected by the Supreme Court ruling.
But that would be an advocacy website. How about a website for a couple just announcing their upcoming wedding? Should racists be allowed to deny mixed couples that service?
Past experience? Refusing to serve food to mixed race couples has happened in the past. While most racists have gotten much better at hiding their true intentions, there is no doubt that they would try again if they weren’t foreclosed on the issue of race.
The current battle over LGBTQ+ rights is very similar to the ones that were had after the Civil Rights Act was enacted. Bigots gonna find a way to bigot, whether it is refusing to make a cake, or refusing to serve food to same sex or interracial couples.
According to Sotomayor’s dissent discussing the majority opinion, those bigots now can.
“Second, the majority completely ignores the categorical nature of the exemption claimed by petitioners. Petitioners maintain, as they have throughout this litigation, that they will refuse to create any wedding website for a same-sex couple. Even an announcement of the time and place of a wedding (similar to the majority’s example from FAIR) abridges petitioners’ freedom of speech, they claim, because “the announcement of the wedding itself is a concept that [Smith] believes to be false.” Tr. of Oral Arg. 41. Indeed, petitioners here concede that if a same-sex couple came across an opposite-sex wedding website created by the company and requested an identical website, with only the names and date of the wedding changed, petitioners would refuse. Id., at 37–38.11 That is status-based discrimination, plain and simple.”
Are their services essentially commodities, or are they personalised to the guests, and does the personalisation equate to a creative expression? If there’s no personalisation involved, or if the personalisation is solely based on the guests’ requests and indifferent to the guests’ sexuality, then my opinion is that they would still be protected under anti-discrimination laws and unaffected by the Supreme Court ruling. I don’t think that post-ruling a Colorado bed-and-breakfast could get away with rejecting a gay couple’s booking. However, if they are offering bespoke romantic weekend experiences, and decline to design a romantic weekend for a gay couple, then I believe the Supreme Court ruling would support that business decision.
And in keeping with the thread topic, I don’t believe that the freedom to decline to make a creative design, regardless of the reason, is a religious accommodation. The Supreme Court is providing atheists the same opportunity to be homophobic as people of faith.
Or an atheist who refuses a right wing christian hate job.
Also remember these people may just not be brave. If it got out that some baker was making "gay cakes: the bigots could run a boycott, threaten hi/her, smash windows and the like.
And that’s a problem. If they would offer that same bespoke experience if the couple wasn’t gay, then that is de facto discrimination.
It’s one thing to say you can’t be forced to say you support gay marriage. It’s another to say that you can’t be forced to make the same website (or same cake) you would have made if the couple wasn’t gay.
That’s the problem. It’s a trivially easy loophole to exploit. Just add the tiniest amount of “expression” to everything, and you can discriminate, even if that expression isn’t actually you being forced to claim you support something.
(Hell, what about just having a disclaimer on your site, saying that the speech is that of the customer and not the designer?)
Yes. To use a last century example, it would be illegal under Colorado law for a newspaper that posts wedding announcements to refuse to post a gay or interracial wedding announcement. The Supreme Court ruling doesn’t change that. But suppose a gay or interracial couple wanted a freelance writer who prepared newspaper announcements to write their wedding announcement. Prior to the Supreme Court decision, Colorado government departments may have had the authority to punish the writer if he declined to write the announcement due to the couple’s sexuality or race. Now the Colorado government no longer has that authority. Website creation is a mix of publishing and content creation. The Supreme Court didn’t rule on an actual case to establish how much creative content is required to qualify as a free speech expression. My opinion is that a small amount of original expression would meet their threshold.
During arguments, did anyone raise this? I’ve wondered this as well. The religious arguments against interracial marriages are well-documented. As vile as they were, I don’t doubt that the bigots genuinely and sincerely held these religious beliefs.
Does the involvement of a protected class make that situation an exclusion? Otherwise, I don’t see how this bigotry wouldn’t also, now, be constitutionally permissible. I’d be interested if any of our constitutional experts chimed in—is there any line that can be drawn that excludes a sincerely held religious belief against this standard?
Do you think that the Supreme Court decision announced in post 154 applies to simply serving food? I don’t but I welcome an informed well-argued opinion that disagrees with mine. Also, do you think that the Supreme Court ruling equates to establishing, for lack of a better term, a “religious privilege” for people of faith in the US food hospitality industry to discriminate?
That is a question I have as well. Are gay people a protected class? I am assuming for the sake of the SC decision that they are not. And that the SC decision over-rides the CO law prohibiting discrimination based on sexual orientation. The web-designer does not want to do business with SSM, which is something gay people may want to do, but if they are not a protected class, then what?
Protected Class: The groups protected from employment discrimination by law. These groups include men and women on the basis of sex; any group which shares a common race, religion, color, or national origin; people over 40; and people with physical or mental handicaps.
Suspect Class: There are four generally agreed-upon suspect classifications; race, religion, national origin, and alienage. However, this is not an inclusive list.
As the law currently stands, neither sexual orientation nor gender identity is considered a federal suspect class, although many states do consider them such.
I would be surprised if the Court, even this … troubling … Court would hold that simpily serving food is “expressive conduct”. But I’d be willing to bet that some bigot somewhere will make that argument in the future. Just as they did back in the 6’s when they were told they had to serve people of a different race or interracial couples.
Which, once again, emphasizes what a crappy Supreme Court opinion Gorsuch wrote. No Constitutional tests outlined for determining what constitutes protected speech. No guidance for future courts. No reference to how lawmakers can create a law that is “narrowly tailored to promote the compelling interest of stopping invidious discrimination” as prior cases require. Just a “can’t do that” that will further empower bigots.
How do you think this case would have been resolved by Gorsuch if bigot Smith had picked a racial classification rather than sexual orientation? If she opened up her marriage website business, but refused to cover interracial marriages? If he’s honest (he’s not) and consistent (jury is still out), he’d have to find that Smith could do that. Which would be shocking in light of precedent.
A bespoke experience is a personally tailored experience designed to uniquely meet the person(s)’ wishes. It’s the opposite of a commodity experience. It requires gathering input from the customers and creating an experience suited to them. That design process is essentially an endorsement of the customers’ wishes. There’s no question that creative actions to suit the customers’ beliefs are involved.
Designing a homosexual romantic weekend may be very much the same as designing a heterosexual romantic weekend, or it may be vastly different in the same way that two heterosexual couple’s romantic weekend ideas could be different, or two homosexual couple’s romantic weekend ideas could be different. But in all cases, the designer would have to be committed to the customers’ interests. That commitment can’t be effectively legally mandated, nor should it be. Design is a form of expressions and is protected by free speech constitutional law. The Supreme Court decision affirms that principal.
It shouldn’t. History shows us that bigotry hides behind religion, but rarely is actually driven by it. Indulging that fiction does far more damage to society and freedom by restricting the ability of so many Americans to engage in normal commerce than it does to those who yearn to discriminate due to personal bigotry. There’s no actual religious text that teaches “thou shalt not create bespoke travel experiences for same-sex couples”.
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