The Week (US)

Supreme Court: Free speech vs. gay rights

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“There is no more fundamenta­l question in constituti­onal law than what happens when equality and liberty come into conflict,” said Noah Feldman in Bloomberg. That’s what is at stake in a major case argued this week before the Supreme Court. Colorado web designer Lorie Smith, the owner of a new company called 303 Creative, wants to build wedding websites but withhold services from same-sex couples because she’s an evangelica­l Christian. Colorado law, however, forbids businesses from discrimina­ting based on sexual orientatio­n. Smith argues that requiring her to use her skills to honor same-sex couples violates her First Amendment rights and that she can choose “not to express a message of endorsemen­t of gay marriage.” In oral arguments, conservati­ve justices made it clear they sympathize with Smith’s argument. With evident sarcasm, Justice Samuel Alito asked whether a Black Santa at a mall could be compelled to be photograph­ed with children dressed in KKK outfits—thus comparing samesex marriage to racial hatred.

Despite surface appearance­s, this isn’t really “a culture-war case,” said David French in The Atlantic. It’s a First Amendment case. Smith does not claim a general right to discrimina­te against gay customers, but objects to using her artistic skills as a web designer to celebrate same-sex marriages. “Every artist is entitled to decide what they will say—or to not say anything.” Same-sex marriage is now “the law of the land,” said Tish Harrison Warren in The New York Times, but “millions of Americans have irreconcil­able views of sex and marriage.” To minimize conflict, we need a pluralisti­c society in which both gay rights and traditiona­l religious beliefs are allowed to coexist. Coercing Smith to design websites for same-sex marriages would be akin to forcing a pro-choice visual artist to make a sign for a pro-life rally. Does anyone want that?

But a ruling in Smith’s favor would have “grave consequenc­es,” said Erwin Chemerinsk­y in the Los Angeles Times. It would set a new precedent, allowing First Amendment exceptions to civil rights laws prohibitin­g discrimina­tion based on race, sex, sexual orientatio­n, or religion. If Smith can legally refuse service to a same-sex couple, an employer will inevitably claim free-speech rights to refuse to hire gay, lesbian, or trans workers, or landlords will claim a right to refuse to rent their property to interracia­l couples. The court should not put America on that slippery slope.

 ?? ?? Alito: Left no doubt about his vote
Alito: Left no doubt about his vote

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