Supreme Court: Free speech vs. gay rights
“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.