Agreed, although, without seeing the web sites, I’m skeptical they differ enough to a be fairly described as serious artistic expression.
The law has to make a bright line between public accommodation and art, but to this non-lawyer, there is a matter of degree. I see some artistry in portrait photography, but not anything like the artistry in a museum-quality oil paint portrait. So it seems to me that if you are a gay portrait photographer in Topeka, and a family you recognize as bring from the Westboro Baptist Church walks in, you should take their business and do a conventional good job. I’d hate to see you punished if you politely decline patronage on the basis of being a Westboro member in good standing, but that’s probably just.
However, what if you are an outstanding artist who takes weeks to gets the emotional impact of each painting correct and occasionally takes commissions? And, having seen your work, the current leader of the Westboro Baptist Church wants his portrait painted? You should be free to refuse, perhaps truthfully telling him that you are emotionally incapable of producing what he wants. And the same would apply if you were a bigoted artist who won’t do a good job painting a gay business executive — you should be allowed to deny the commission, including explaining why.
Is there any way the law can distinguish between trivial and profound artistic expression, and only protect bigots when the latter is concerned?
It might start by only taking cases where someone was actually told by the government that they had to do something. And not take the case of a woman who maybe wants to get into a business where no one is ever going to ask her to do something she doesn’t want to do, but she’ll invent a fake customer request.
Actual cases would have actual details where one might judge actual artistic speech.
And we’re back to the arguments that the bigots made in the 60’s when public accommodation laws first started to be enforced. “You can’t force me to serve black people because I have a right to associate with whomever I want” and “you can’t force me to serve black people because my religion demands that I be an asshole to people of color”. Yet, as Sotomayor pointed out, those arguments were unpersuasive to a less bigoted Supreme Court than the one currently in charge of protecting the Constitution. Heart of Atlanta Hotel, Katzenburg v. McClung, and Newman v. Piggy Park established that, if you wish to use the public sphere to conduct business, you have to follow the rules. And, despite being an alleged violation of your right to assembly or right to due process, or right to be a bigot, government can make rules to require your business not to discriminate.
So, as those cases and others established, First Amendment rights can be limited by anti-discrimination laws.
And, of course, bigots gonna bigot, so they argued that, even if I can’t refuse to serve blacks, I should be allowed my right to free speech by putting up a sign that says “Whites only” or “No Irish allowed”. Since those are clearly “expressive speech”, the argument went, it’s a violation of free speech to force me to take those signs down.
And, once again, a more … tolerant … Supreme Court rejected that argument. Again, as Sotomayor stated: "This Court has long held that “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.” Sorrell v. IMS Health Inc., 564 U. S. 552, 567 (2011). “Congress, for
example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading ‘White Applicants
Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.” Rumsfeld v. Forum for Academic and Institutional Rights,
Inc., 547 U. S. 47, 62 (2006) (FAIR).
And, as always happens, bigots gonna bigot.
This time, they switch to women, and argued that requiring the Jaycees to allow women was a violation of their free speech and associational rights. And, once again, a less … restrictive … Supreme Court, said no. Because the anti-discrimination public accommodations law "“purpose was “eliminating discrimination and assuring [the State’s] citizens equal access to publicly available goods and services.” Ibid. “That goal,” the Court reasoned, “was unrelated to the suppression of expression” and “plainly serves compelling state interests of the highest order.” They later held the same regarding a law firm refusing to allow women to make partner; a company is still required to adhere to the law, even if it involves “speech” or “free expression”.
And, of course, bigots gonna bigot, so now we have bigots claiming first amendment right to discriminate against gay people.
But this time, you have this … less interested in social justice and the law … Supreme Court change that. What this current Supreme Court has done in this case is carve out a special exception to those rules previously set by precedent for what they decide is “expressive” speech.
They’ve basically decided that, in this case, bigots gonna bigot is a good enough reason.
Colorado Civil Rights Division should move the current court to have it stricken (or whatever the procedural means to actually do so are). Chief Justice Roberts is supposed to be a big stickler for enforcing the controversy requirements of Article 3 Section 2 of the Constitution, so he should have no qualms with striking the case.
Then when an actual case comes along in the future a reasonable court can hear that similar case.
One of the innumerable consequences of the functional illiteracy of social conservatives is their inability to grasp a sense of history.
As each group that they’ve aggressively tried to marginalize began to get equal rights, the sky simply didn’t fall. The social conservatives – as is pretty much always the case – were utterly and completely wrong.
But rather than do a bit of introspection and reflection, they set their sights on whatever their next vulnerable bogeyman of choice must be. As “God” needs the “devil,” these social conservatives constantly need some shadowy figure to rail against.
Another thought: Most of the power of the Supreme Court comes not from the individual specific cases that they hear, but from precedent. But precedents only apply for cases that are sufficiently similar, and lawyers argue all the time that a given case is not sufficiently similar to the precedent, because of X, Y, and Z. And the current Supreme Court itself has had no qualms about rejecting previous precedents based on the flimsiest of differences.
So what happens if some other state passes an anti-discrimination law, and the lower courts rule that this case isn’t a relevant precedent, because the new case is substantially different in that it involves an actual company that’s actually in a particular line of work and an actual customer?
Precisely, except for the part where you brought up the Colorado Civil Rights Division, and the link brings up the Colorado Attorney General.
Has something like this ever been attempted before? If so, has it ever been successful?
I remember being absolutely shocked to learn about the post WWII movements to drive women back out of the workplace, and realizing that the arguments made in the 1940s and 1950s were exactly the same as those used against gay marriage. In the context of women in the workplace, they were clearly all ridiculous, sexist, untenable, etc., but they popped right back up in the 1990s. (“Think of the children,” “it’s not natural,” but some more nuanced ones, as well—I don’t remember the details, just the shock at recognizing the arguments I hadn’t realized were old and worn-out. Which is, by the way, also an argument for putting women’s studies closer to the core of the curriculum.)
I acknowledge your point. The government can compel people to be around people of other races in commercial settings by stating that businesses and their employees can’t racially discriminate against customers. Or in Colorado, they can’t discriminate based on sexual orientation. But the legal rulings are usually framed based on a situation where a customer is entering or engaging a business at the business’s premises or remotely. Does the reverse anti-discriminatory principle hold true where a service supplier is being asked to work at a customer’s business site? And does the degree of the experience that the supplier will receive at the customer’s site make a difference?
Nobody should be forced by the state to be a customer at any bar. I made this earlier statement:
A hypothetical bar-drinker who lives in the hypothetical town goes with varying frequency to the nine non-gay bars, but never to the gay bar. Is her choice not to go to the gay bar discriminatory? And if it is, should she therefore be compelled to go drink at the gay bar? The answer to the first question is yes, but it’s none of the government’s business. The answer to the second question is obviously no.
Switch the situation to a part-time bartender willing to pick up shifts as a temp employee. Should she have the right to refuse shifts at the gay bar, even if she would be happy to pick up equivalent shifts at a non-gay bar? I don’t think the government could compel someone to work in a business where she didn’t want to work because the government felt she was being discriminatory.d
Now switch the situation to a plumber. Suppose a plumber is asked to do maintenance at the gay bar during hours when the bar isn’t open. Can she legally refuse the business based on the premise that she doesn’t want to work at a gay bar, or does the fact that she’ll have minimal interactions with the gay bar’s operations bring her into scope of anti-discriminatory laws? I would think it would be the latter and she’d be legally required to do the maintenance.
So going back to my hypothetical example, does a bar security firm receive the same legal treatment as a temp bartender, or are they more legally equivalent to the plumber? If an individual can refuse to work shifts at some business, can a contractor refuse to have her employee’s work at that business?
Your answer is “bigots gonna bigot”, but I think there are significant questions of individual freedom involved.
But she can refuse to do the business for a variety of other reasons, like she’s too busy or is going to be out of town. No contractor is obligated to accept a job she’s asked to do.
I’m surprised there aren’t all kinds of hypothetical cases being filed – the above-mentioned atheist who won’t build websites for Christians, people trying to not provide certain services to mixed-race couples, and so on.