Listen live to the Supreme Court hearings on the Colorado case

December 5, 2022 • 9:57 am

Listen live to the Supreme Court hearings on the case of a website designer refusing, on religious grounds, to create a wedding site for a gay couple. And once again Justice Thomas is actually asking questions!

I’m betting a 6-3 vote for the web designer; with the new Court, this isn’t rocket science.

The skinny from the NYT:

The Supreme Court is hearing arguments on Monday in a First Amendment battle pitting claims of religious freedom against laws prohibiting discrimination on the basis of sexual orientation.

A web designer in Colorado, Lorie Smith, said she was happy to create graphics and websites for anyone, including L.G.B.T.Q. people. But her Christian faith, she said, did not allow her to create messages celebrating same-sex marriages. A state law forbids this kind of discrimination.

Here’s what else you need to know:

  • The ruling could have enormous consequences. Ms. Smith’s supporters say a ruling for the state would allow the government to force all sorts of artists to state things at odds with their beliefs. Her opponents say a ruling in her favor would allow many businesses to refuse service to, say, Black people or Muslims based on odious but sincerely held convictions.

  • If the case sounds familiar, it is. The court ruled in a very similar one in 2018 involving a baker of wedding cakes in Colorado but did not settle the question of whether the First Amendment permits discrimination by businesses open to the public based on their owners’ religious convictions.

  • The court has shifted to the right since that 2018 decision and has been exceptionally receptive to claims of religious freedom.

  • The court might have to give guidance on what kinds of businesses are engaged in expression. In the 2018 case, the baker’s lawyer was closely questioned about where to draw the constitutional line, but her answers did not reveal a consistent principle.

23 thoughts on “Listen live to the Supreme Court hearings on the Colorado case

  1. If they rule in favour of the web designer (as, sadly, they likely will), there’s then no clear place to draw the line. There would then be no clear way of deciding which generally applicable rules a business can ignore owing to “religious freedom”.

    1. Not just freedom of religion, but also freedom of speech. Can any artist be compelled to create a sentiment with which he disagrees? They re all First Amendment issues.

      There was an episode of Will & Grace (S09E14: “The Beefcake & the Cake Beef”) where Karen compelled a baker to make her a MAGA/Trump cake.

      1. If a business is offering a “we provide cakes decorated with your messages” service then, yes, they should provide MAGA cakes and gay cakes. As I’ve said, I don’t accept that businesses should have 1st-amendment speech rights.

        1. > If a business is offering a “we provide cakes decorated with your messages” service

          How about a “we provide cakes from this limited selection”? Can you compel them to expand the selection? Can you compel them to order stock that they otherwise wouldn’t?

          The easy technicality is if the bakery sells cakes from a limited selection with minimal customization. Once the cake has been sold, the decorator can volunteer his/her personal time and resources to provide additional customization in line with what he/she as an artist would support. When you realize that finding those kinds of technicalities is trivial, it circumvents and undermines many mandates that governments inflict on us.

          It is going to be interesting to watch how “We reserve the right to refuse service” question continues to play out. In many jurisdictions, businesses are free to refuse service without providing a reason. We saw from the question about whether businesses can refuse services to the unmasked that a condition (masklessness) with a statistical-but-not-absolute correlation with a protected condition (religion, etc.) is itself not necessarily protected. Heterosexuals can-and-do now have same-sex marriages (in militaries, among the elderly, etc., for benefits), so a same-sex wedding is not an explicit/exclusive action of homosexuals, and not protected as such.

          > I don’t accept that businesses should have 1st-amendment speech rights.

          I accept that employees and business owners should have those rights (‘rights’ again, meaning that the government cannot infringe on them; private property owners, of course, can determine what expression they choose to host on their property). But, like all rights, it is not always in good taste to exercise them all the time.

          You’re free to try to amend the Constitution, though.

          1. I accept that employees and business owners should have those [speech] rights …

            Not when at work, no. For example, McDonalds can instruct their counter staff in what to say to customers.

            You’re free to try to amend the Constitution, though.

            The doctrine that businesses count as “persons” and thus have speech rights is not explicitly in the constitution and depends on SCotUS rulings (e.g. 2010 Citizens United case on campaign finance).

            1. McDonalds is a poor analogy here: Any court would rule that making burgers to a fixed set of ingredients and set procedure does not constitute creative art. And businesses can have terms of employment that include required speech. But that is not artistic expression, which is what is at issue in these cases.

              Paintings and sculpture are considered more of a creative artistic act that, say, making jewelry (or what I make, musical instruments). Or than design of a web page. But surely there’s creative, artistic value in webpage design. Otherwise, few would pay others to do it.

              Almost nothing of what passes through courts these days is likely mentioned in the Constitution: Most of what we deal with today was undreamed-of by the framers. (I don’t like Alito’s assertion that rights must be explicitly written in the Constitution.) So: Most things of importance rely on the courts interpreting the Constitution.

        2. Set aside the religious issues. Do you have any limits on what messages or activities a business should be compelled to provide? Should a baker or printer be compelled to produce products that say, for instance, “Fa@@ots are evil”, or “All Jews should now die”? Should a photographer or videographer be compelled to do X-rated photo or video shoots for the personal use of an adult, consenting couple?

          Should personal conscience ever come into play? Or is everything legal thus fair game?

          I’m not trolling here, just trying to separate the issue from the religious taint of this particular case.

          1. A business can set limits on what services they will supply (e.g. “no sexual content”), so long as those limits are not discriminatory with respect to protected classes.

    2. I am more worried by the wish of the wronged customer, instead of writing a negative Google review and turning to another service provider, to run to the court to try and ruin the business and life of the offending service provider.
      There was a trans woman (I think in Canada) who had made it a hobby to ruin beauticians refusing to wax her scrotum.

        1. The Yaniv case illustrates how “systemic trans-ism” has become deeply institutionalized. His first few victims paid up at the Human Rights Commission, presumably thinking, “Well, they didn’t tell me this is how Canada worked when I decided to immigrate, but live and learn.” Some beauticians had tried to engage lawyers but none of the Vancouver law firms would take their cases in the defence. They were making good money representing trans plaintiffs in various cases around town and decided that defending an obviously deplorable transphobe immigrant would be bad for business.

          Yaniv covered his tracks by getting the Human Rights Commission to hear his cases anonymously on the grounds of fearing reprisal by his transphobic tormentors. This made it appear to successive tribunals that there was an epidemic of transphobia among the B.C. Bengali immigrant community that had to be stamped out with stiff penalties.

          Eventually one of the respondents got onto the Justice Centre for Constitutional Freedoms — disclosure: I am a donor — fondly described by Canada’s main-stream media as a right-wing pressure group (and mentioned in the Wiki.) Their lawyer smelled a rat when his client told him that her community was being targeted with all these complaints and sued to have the names of the previous complainants released. They were all by Yaniv. This led to a spirted defence which caused the tribunal to dismiss his complaint. And it goes on.

          In other Left Coast news, the Vancouver Rape Crisis Centre lost its municipal funding a few years ago when it would not relent on its policy of refusing to let men enter its shelter. Fortunately it is not totally dependent on city council and continues to operate.

  2. Being essentially agnostic all my life, I have followed this shift for awhile with growing dismay. I’ve always felt the Occam’s Razor approach of letting all the folderol fall away and paying attention to the essential points might lead us to land on a position that re-affirms religion as being inherently personal and commerce as being inherently public. If we agree with that construct, then what one does in his personal space is his to decide and society has developed rights and laws to protect that. However, once one chooses to enter the public space of commerce, one is now subject to the cultural norms and laws that apply there.

  3. I am probably as skeptical of religion as most on this forum, and I see that this issue can get complicated, but I seem to be coming down on the side of the artists here. Although it links to their religion, the artists in question are being asked to create art that is morally objectionable to them.
    These lawsuits are not coming from people who are being legitimately discriminated against, but rather from activists who seek them out, deliberately asking for something they know will be refused.

    “I’m thinking a three-tiered white cake. Cheesecake frosting,” the customer wrote in the June 4 email, according to Phillips’ lawsuit filed in Denver’s federal court on Tuesday. “And the topper should be a large figure of Satan, licking a 9″ black Dildo. I would like the dildo to be an actual working model, that can be turned on before we unveil the cake.” Newsweek 8/7/18

    My strong suspicion is that they are targeting Christians because they have fallen out of favor lately. It will not stop with them. They don’t care about the cake, the website, or any other form of art that they attempt to commission. They want to make transgressive demands of people, even as what is perceived as transgressive shifts with the culture.

    Some of us regularly take commissions to create things that can be seen as art. All of us also have thresholds beyond which we will not go without compromising our basic morality. Queer theory is fundamentally about finding those limits, and pushing people beyond them in order to cause disruption.

    This story was just on TV, and we were warned that finding for the artist would inevitably lead to businesses with “No Blacks or Jews” signs on their doors. I think the opposite is true. Finding that artists can be compelled to make whatever the customer thinks up will lead to the slippery slope.

    1. Agree, I wonder why, beyond making a political point, one would commission something from an “artist” (in the broadest sense) who isn’t comfortable with the subject. If I want a watercolor of my cat, I’d probably want it painted by someone who likes cats rather than the local dog specialist. Given the demise in June of our last cat, at the old age of 21, that should be a picture of “my late cat” (Kittens pending, I’m told, the requisite mourning period and a bunch of travel, being over)

    2. I agree. I make musical instruments that are works of art.

      Sometimes I get a difficult potential customer (so far, I’ve never gone to the paid deposit step with any of them). Usually, the issue is that they want to tell me how to make the instrument. (Um, that’s why you’re paying me to make the instrument: Because I know what I’m doing and it’s 99% certain that you don’t.)

      I learned long ago that the only thing that will deflect a determined trollish seeker is “no room at the inn.” I’m too busy, I couldn’t deliver that until … let’s see: 2027, maybe 2029.

      I take umbrage at the idea that anyone, regardless of their identity, can force me to create a work of art for them. Certainly, buy one of my existing instruments. But you can’t make me create art for you to your specifications. No.

      1. I would be very keen to see some of your work.
        My usual practice for commissioned creative work is to talk to the customer about what use they plan to put the object to, and a bit about their budget, preferences and background. Then I go off and come up with a concept and work out all the details myself. I might check back in with them about major concepts, to let them know the basic direction I am taking.
        One example of that is when I was hired to make a knife based on a person’s heritage, to celebrate the fact that they had finished the restoration of their family pioneer home. That is pretty much the extent of the direction I got. Partway through the process, I asked for any early images of the home. What they got was a Bowie knife, in the regional style that prevailed in the time and place that the old house was built, with an image of the old home place etched into one side of the handle, and some family details on the other, as if one of the ancestors had commissioned the knife in the early 19th century, to remind them of home when they traveled or went to war.
        The other kind of work I do is restoration, where the only creativity involved is finding effective methods to duplicate old techniques of manufacture, and the ability to age the repaired areas so that they become invisible.

        I think I got the basic philosophy from my shirt maker, who is a real artist. Anyone can go into his shop and buy what is on the rack, but the custom work is different. He asks about the situation where the item will be worn, and a bit about your personality. He might show you some color combinations to get your preferences about color, generally. The final product could be anything, and not necessarily any of the colors you reviewed. (These are fancy western shirts, with lots of embroidery and applique and such.)

    3. +1 as well

      Suppose a web designer was being asked to make a website on how creationism was true and evolution was wrong/evil and they said “sorry, I don’t want to do that”.

      Seems to be the same category but lots of people might switch sides on their principles.

  4. I guess if they’d been asked to make a website with a swastika on it, some of the people who are currently condemning the designers might flip sides. In fact, I think I’d possibly be included in that number, because I don’t think you can always extract a principle that is unconnected to the specifics. Cases can often hinge on an interpretation of what is reasonable in a given context (for example, ‘reasonable force’). So I think some people are searching for a level of consistency that does not need to be there. A court can decide it’s unreasonable to refuse a request for a web-page that celebrates same-sex marriage but not one that celebrates satanism, for example.

    1. A court can decide it’s unreasonable to refuse a request for a web-page that celebrates same-sex marriage but not one that celebrates satanism, for example.

      I don’t see that as being sufficiently consistent; of course, the court systems are notoriously inconsistent, in practice.

      My primary atheist group has one member who insists on identifying as a satanist, arguing that neo-satanism means embracing human nature and the earth. I think he is a LaVeyan Satanist. I won’t pretend to understand them.

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