Can I just say as a retired baker that I can’t understand people refusing a paying customer of any stripe. Well, at least as long as it wasn’t something like a swastika cake.
I just would care what kind of gender identitiy a couple might have, or their color. If their money is green, I’d make them a cake.
I think expressive speech that celebrates and promotes a specific wedding and love story, and is published to the public under the author’s name, counts as an endorsement of that wedding and the couple’s love. The service 303 Creative wants to provide necessarily involves endorsing a particular marriage and the love of the particular couple being wed. But Ms. Smith does not want to endorse a same-sex marriage.
From the Joint Statement of Stipulated Facts (a list of facts the State of Colorado and Ms. Smith both agreed upon):
- All of Plaintiffs’ website designs are expressive in
nature, as they contain images, words, symbols, and
other modes of expression that Plaintiffs use to
communicate a particular message.[…]
- Each website 303 Creative designs and creates is
an original, customized creation for each client.[…]
- Every aspect of the websites and graphics
Plaintiffs design contributes to the overall messages
that Plaintiffs convey through the websites and
graphics and the efficacy of those messages.[…]
- Plaintiffs’ custom wedding websites will be
expressive in nature, using text, graphics, and in
some cases videos to celebrate and promote the
couple’s wedding and unique love story.[…]
- Viewers of the wedding websites will know that
the websites are Plaintiffs’ original artwork because
all of the wedding websites will say “Designed by
303Creative.com.”
That’s not true. I could envision a hypothetical where 303 Creative would refuse to design a website that celebrates and promotes a child marriage. The parties also stipulated that 303 Creative would be willing to create other non-wedding website designs for gay clients.
- Plaintiffs are willing to work with all people
regardless of classifications such as race, creed,
sexual orientation, and gender.- Plaintiffs do not object to and will gladly create
custom graphics and websites for gay, lesbian, or
bisexual clients or for organizations run by gay,
lesbian, or bisexual persons so long as the custom
graphics and websites do not violate their religious
beliefs, as is true for all customers.- Among other things, Plaintiffs will decline any
request to design, create, or promote content that:
contradicts biblical truth; demeans or disparages
others; promotes sexual immorality; supports the
destruction of unborn children; incites violence; or
promotes any conception of marriage other than
marriage between one man and one woman.
Plaintiff is not planning on going into the business of creating “neutral” marriage websites. Her concept of marriage is exclusively heterosexual. She is explicitly going into business to create designs that promote and celebrate the institution of marriage as she understands it: between a man and a woman.
- Ms. Smith is compelled by her religious beliefs to
use the talents God has given her to promote God’s
design for marriage in a compelling way.- Ms. Smith is compelled by her religious beliefs to
do this by expanding the scope of 303 Creative’s
services to include the design, creation, and
publication of wedding websites.- Consistent with Plaintiffs’ religious beliefs, the
wedding websites that Plaintiffs wish to design,
create, and publish will promote and celebrate the
unique beauty of God’s design for marriage between
one man and one woman.- By creating wedding websites, Ms. Smith and 303
Creative will collaborate with prospective brides and
grooms in order to use their unique stories as source
material to express Ms. Smith’s and 303 Creative’s
message celebrating and promoting God’s design for
marriage as the lifelong union of one man and one
woman.
I agree with the latter sentence, however…
One, de facto is not de jure. Laws are imperfect and will often tolerate de facto injustice. Judges should rule on law, not on fact.
Two, once you change the subject of a speech, the speech is no longer the exact same thing. If I were to say “he is married”, it matters who “he” refers to because some people are married and some people are not. To a bigoted person who does not recognize same-sex marriages, same-sex couples are not married. It is a very different thing for such a person to speak of same-sex couples - the sentence could turn from truth to lie.
~Max
Especially when that Jew is happy to work 3 shifts in a row (holiday double time) on Christmas and Easter! 
I’ll just note that even the defence in CREATIVE LLC v. ELENIS disagrees with you. They were willing to stipulate that “Ms. Smith provides design services that are “expressive” and her “original, customized” creations “contribut[e] to the overall message” her business conveys “through the websites” it creates; the wedding websites she plans to create “will be expressive in nature, will be “customized and tailored” through close collaboration with individual couples, and will “express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage;”
Full quote:
"Before the district court, Ms. Smith and the State stipulated to a number of facts: Ms. Smith is “willing to work with all people regard- less of classifications such as race, creed, sexual orientation, and gen- der” and “will gladly create custom graphics and websites” for clients of any sexual orientation; she will not produce content that “contradicts biblical truth” regardless of who orders it; Ms. Smith’s belief that marriage is a union between one man and one woman is a sincerely held conviction; Ms. Smith provides design services that are “expressive” and her “original, customized” creations “contribut[e] to the overall message” her business conveys “through the websites” it creates; the wedding websites she plans to create “will be expressive in nature, will be “customized and tailored” through close collaboration with individual couples, and will “express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage; viewers of Ms. Smith’s websites “will know that the websites are her original art- work;” and “[t]here are numerous companies in the State of Colorado and across the nation that offer custom website design services.”
Quoted via the NPR website which attached the ruling.
Yes. If Lorie Smith is opposed to interracial marriages, she should not be compelled to express support for interracial marriages. An artistic service has been deemed to be an expressions of speech, and therefore guarded by First Amendment free speech protections. CREATIVE LLC v. ELENIS confirmed that free speech protection.
I’m asking out of ignorance here.
I agree that artists should not be compelled to express viewpoints other than their own.
However, it is not a requirement of an artist that they use their art in a business context, and if you are a business open to the public, you cannot discriminate against a protected class (which doesn’t necessarily include sexual orientation but does include race).
So what seems to be the case is a businessperson saying, “well, my business involves speech, and therefore my First Amendment rights trump all.”
Shouldn’t it be the case that artists who wish to express racist views be allowed to do so as private individuals, and be allowed to produce and sell their art to other racists, but should NOT be allowed to take commissions from the public unless they’re willing to do so without racial discrimination?
My totally sincere answer would be: you’ve just asked the central question of the litigation. You can get up to speed with…
Sounds like she intends to create a “biblical Christian”-valued web design business that would accept work for people who are not themselves “biblical Christians” or that are not propagandizing that faith, or that is purely secular, but only as long as she does not have to acknowledge anything in discordance with her own “biblical Christianness” as part of the work.
I suppose I should not be expecting to hire her for my Charles Darwin tribute or Celebration of Gnosticism sites.
Look, she’s the kind of person who will quote the bible at her clients, and also on the face of her website designs. I’m not just assuming, she wrote so much in her court filings.
I looked at the wedding website she designed. There is zero chance of a same sex couple soliciting her work, except maybe to spite her if the law had compelled her to take the job.
~Max
That’s the Jim Crow South redux.
The question then was “Why would you want to spend your money in a place that has a ‘Coloreds Not Welcome’ sign in the front window?”
We’ve been there. We’ve done that. As a nation, we resoundingly rejected it.
Except that same old, tedious demographic …
Concentrating on the last paragraph.
No. Because no-one can provide a universal expression of what is a White website, versus a White-political website, or a Black website versus a Black-political website, or Latino, or Arabic, or South Asian, or East Asian, or Polynesian, or keep going. A website designer may choose to not supply her services to a business with links to the Saudi-Arabian government. Is that decision anti-Arabic, or based on the politics of the Saudi-Arabian government? Who gets to decide the motive behind the decision? Are you happy if the decider is a George W. Bush appointed judge?
The far safer conclusion, and certainly the one based on the US constitution, is the website designer can make her own choice and the government can’t interrogate her motives. The US government shouldn’t be compelling speech at all, much less decide which compelled speech is okay and which isn’t.
‘Well, those coloreds can just go to another store town county state country planet!’
That old, tedious demographic’s solutions still work!
/s
Likelihood of having same sex clients would be irrelevant if the business was actually operating with a discriminatory sign. The presence of a sign would harm the public and allow the State to sue. Here 303 Creative only has plans to work on wedding website designs. Nothing analogous to a Colored Not Wanted sign has actually been put up.
~Max
Okay.
The part that gets me is that the first amendment includes, with (AFAICT) equal priority, both free speech and the right of peaceable assembly. That second right is interpreted as protecting freedom of association.
https://constitution.findlaw.com/amendment1/first-amendment-freedom-of-association.html
Does this case open the door to “freedom of association” cases, in which a business owner declines to associate with a given customer based on their religious beliefs?
Even without that, it seems to open the door to rampant discrimination in any business where speech is required. Suppose Joe is a rabid antisemite and works tables at Applebee’s. When he sees a Jewish couple enter, may he stand by their table and refuse to speak to them, and claim religious protection for his behavior to prevent being fired?
Or consider the self-employed. If Wanda hates Muslims, and a Muslim man enters her accounting office, is it compelled speech to require her to acknowledge the man? Can she exercise her freedom of speech to say, “I don’t care what the law is, I’m not going to serve you?”
The central flaw in the SC’s reasoning, IMO, is that a person who enters business may always close their business and avoid any free speech or freedom-of-association liability. If Wanda doesn’t want to do taxes for Muslims, she can close her accounting business. Joe can quit waiting tables and not have to serve Jews.
But when you’re working in a public-facing business, you accept the regulations that go with that.
Okay.
So, instead, it’s a shop festooned with crucifixes and the overwhelming atmosphere of “Jews: please shop elsewhere.”
Or Stars of David and the undeniable scent of “No Muslims Need Apply.”
You pretty much made the same case that I did:
I feel like we’re arguing about degree, but that the distinction lacks a functional difference.
It can’t be stressed enough that 303 Creative is the plaintiff, and the State of Colorado (through Director Elenis) was haled into court against their will.
~Max
He could be fired. This decision - and the Fourteenth Amendment - only enjoins the government, not a private party such as an employer.
I could, however, envision an antisemitic test case where a restaurant refuses to address Jews as sirs or ma’ams, as a matter of policy. On belief that they are subhuman or other bs. If that’s not expressive enough maybe have the staff do a spiel but not for Jews. It’d be a federal case, First Amendment versus the Commerce clause (Title II of Civil Rights Act). I think the bigots should win that case, but I’m still trying to think of a good reason to distinguish commercial from noncommercial speech.
~Max
The wedding website is not discriminatory on it’s face. It’s hostile to set sex marriage (there is a bible quote of a man and woman) but it does not announce that the designer would discriminate against gay or lesbian clients.
Ms. Smith, in her filings, said she plans on introducing a clause into client contracts saying she will not work on a same sex marriage website. As I understand it the client would see this clause only after soliciting her for wedding work - which is unlikely.
~Max
I wouldn’t count on the Civil Rights Act being around for too much longer. There’s a really good chance it’ll get repealed or deemed unconstitutional within our lifetime.
In the 1970s and 1980s it was common to hear Republicans and Libertarians saying that the Civil Rights Act was unconstitutional both from a fifth amendment takings clause perspective and a First Amendment free speech point of view.
For 30 years this was totally outside the mainstream of political thought, a fringe position that everyone thought was settled law.
No more can we be sure.