In a case argued at the Supreme Court this week, a Colorado website designer appealed a decision from lower courts requiring her to create wedding websites for gay couples in violation of her religious belief that marriage is between a man and a woman. The Court is likely to reverse the lower court decision, and allow her to decline to create such websites.
The liberal minority on the Court and the liberal media argue that such a decision will lead to a new Jim Crow era where the providers of public accommodation are allowed to refuse services to people on the basis of their sexual preferences or skin color.
That argument is incorrect and probably not even sincere. Here’s why.
The First Amendment of course prohibits the government from banning speech. Less recognized is that the First Amendment also prohibits the government from compelling speech. That means it’s unconstitutional for the government to prohibit you from voicing support for gay marriage and it’s equally unconstitutional for the government to require you to voice such support.
A website is a form of speech and so it is protected by the First Amendment. Within broad limits, the government cannot prohibit particular expressions on a website, nor can the government mandate particular expressions on a website.
But, say the liberals, that would mean that a website designer can simply refuse to provide services to gays and, by extension, to Blacks.
No, it doesn’t mean that. Setting aside the debatable question of whether a website constitutes a public accommodation, the basic logical flaw to the liberals’ argument is that it confuses the identity of the customer with the identity of the service he’s buying.
In a restaurant or airplane, the services being sold are food and travel. It should be, and is, illegal to discriminate against customers based on their sex or skin color in offering public food and travel services.
But the wedding website designer in this Supreme Court case is not refusing to serve certain kinds of people. She’s refusing to provide certain kinds of services. She isn’t refusing to serve gay people. She’s refusing to perform gay services. That’s an important distinction. If a gay person wanted her to create a straight website, she would do so. Conversely, if a straight person wanted her to create a gay website, she would refuse to do so.
This case follows one from a few years ago, also originating in Colorado, where a wedding cake baker refused on religious convictions to design and bake cakes depicting gay marriage. He didn’t refuse to serve gays, mind you, and he did freely serve gays, but he refused to design and bake a cake depicting their gay marriage. The Supreme Court in that case sided with the baker, though the decision was muddled.
In short, the key question is whether a business proprietor is refusing to perform services on the basis of the identity of the customer or on the basis of the identity of the services the customer wants the proprietor to perform. You can’t refuse to sell to a gay person, but you can refuse to sell a gay service.
The proper analogy to public accommodation laws is this: If a website designer can be forced to design a website celebrating gay marriage because that’s what a given customer wants (notwithstanding the reality that the customer could of course get his or her website elsewhere) then a restaurateur could be forced to prepare food that celebrates whatever a given customer wants to eat. Japanese patrons could demand sushi, Jews could demand kosher, and Scots could demand haggis.
Businesses should provide services to customers without regard for their race or sex, but that doesn’t mean they should be required to provide whatever services those customers request, especially if the requested services are contrary to the proprietor’s religious convictions. The restaurant should be required to serve Japanese, Jewish and even Scottish patrons, but should not be required to prepare sushi, kosher and haggis for them.
Liberals don’t like this outcome, because they want to eradicate racial and sexual discrimination, even if (perhaps especially if) it’s at the cost of eradicating religion. But new rights for some people entail new obligations for others. I personally am OK with gays having a legal right to get married, but I’m not OK with everyone being legally obligated to endorse it in violation of their religious beliefs. To impose such a legal obligation is, in effect, to ban that religion. Liberals know that, and that’s what they want.
Expect another 6-3 decision siding with the First Amendment by the conservative-ish Supreme Court. By the way, love ’em or hate ’em, these recent Supreme Court decisions are a direct result of the ballsiness of Mitch McConnell and Donald Trump in judicial appointments, with the invaluable aid of the Federalist Society.
Glenn Beaton was a lawyer practicing in the federal courts, including the Supreme Court.
the Aspen beat 
Looking forward to Supreme Court coming down firmly against coerced speech. There’s something even more toxic than this…the Biden admin is trying to force health care professionals to affirm the transgender narrative, something that is fundamentally untrue regardless of your religious convictions.
As someone who managed a clinic at a Catholic Hospital this is really distressing. Many religions abhor what I consider mutilation to accommodate a mental health issue or the killing of humans prior to birth. This is sincere and not simply lip service. Yet instead of being satisfied that these procedures are available at other facilities, the activists want to force medical professionals to engage in practices they abhor.
It boils down to the clerk or salesperson is to be blind to the who but can choose between the whats.
I admire your lawyerly parsing of the meaning of the First Amendment, and agree that, at this point in our neo-medieval legal scholasticism, in which we find ourselves inquiring about the numbers of black people who can fit on the campus of a university instead of dancing on the head of a pin (you decide which is the more fruitful inquiry), such an exegesis is a positive boon to the unwashed masses whose lives will eventually be impacted by the debate. However, I submit that the First Amendment’s grant of the right of free assembly and association contains within it the right of refusal to associate. That our government in its misguided desire to make things “fair” for the inhabitants whose ancestors were brought here under involuntary servitude and who are now identifiable exclusively by the excess melanin in their epidermis has made things manifestly “unfair” for the rest of us. The erroneous and unlawful abridgement of “our” rights under color of law has been adopted and amplified by other so-called disadvantaged groups, most specifically the buggers and pederasts who fall within the rubric of “LGBTQI+” or whatever the hell other acronym they are now assaulting us with. They claim to want “inclusion” and “equality/equity” but what they really want is domination. I have said before and will repeat again for the benefit of those who may read this: the former slave never wants mere equality with his master; he wants to BE the master. Blacks do not merely want to be viewed as equals, but as our betters. Sexual deviants do not want to be accepted; they want to usurp the traditional roles of the sexes and replace them with their nouveau degeneracy, which covers everything from mere homosexual aberrance to child mutilation and rape. (I specifically use the word “rape” in the context of sex with minors, as that is a legal category of long and honorable standing, whereby it has been established that no minor can give consent to a sex act regardless of force or lack thereof.) So, now we can anticipate the Supreme Curt once again splitting legal hairs, in hopes that we might retain some semblance of our once impressive array of “unalienable rights.” What a joke. Just not a funny one.
So it is.
I understand your sentiments, Steve, and I think there’s a grain of truth in them when it comes to the alphabet people. As for blacks and other racial minorities, however, I think they don’t generally want to enslave whites, other than perhaps among a tiny subset of black nationalist nuts
So, a better analogy would be…if a person’s religion believes interracial marriage is wrong, then he or she could refuse to provide a website for that. It’s an uncomfortable situation for me. But free speech is often uncomfortable and that is one of the best reasons to protect it.
Well, the analogy is, in the first place, fallacious, as Alito indicated when Kagan suggested it. Deviant behavior is quite a different kettle of fish from random genetic characteristics; it can profoundly affect the wellbeing of the individual, and its effect on others — children, for example — gives the state a compelling interest in determining whether to govern it. Secondly, it is something of a straw man since I can’t think of any significant religion, rightly understood, that makes a big deal about genetic purity. Jesus, for example, not only embraced gentiles, but his own Hebrew bloodline had been halved and quartered and so on by ancestors from Rachel to Ruth.
But people do make ignorant and outrageous claims about what their religious faith stipulates. While I was sitting in a jury pool, a woman next to me told the judge that her Christian Faith did not permit her to judge others. Say what?! The judge promptly excused her, which indicated that he didn’t understand Christianity any better than she did. Free speech is worthless if it is not honest and responsible speech, and is not held to such standards.
Regardless, the right of free association allows a business owner to refuse service to anyone for any reason.
Federal laws requiring India visuals to associate with others are a clear rights violation. Unfortunately, the Court has yet to affirm the right of free association.
A reader informs me that h tried to post the following but was unsuccessful and asked me to post it for him:
1. I agree with recovering lawyer Steve on the basic public-accommodations regime: Being forced to serve someone you don’t want to serve obviously violates freedom of association, and I think such policy is wrong, no matter what the Supremes have said about it.
(I haven’t yet read Christopher Caldwell’s _Age of Entitlement_, but I have the impression that this loss of freedom of association is at the heart of his thesis that, ever since the civil-rights laws, we’ve been living under a new constitution.)
2. While I’m not hostile to homosexuals, I **am** hostile to the obvious homosexual agenda, which includes levying punitive costs on others — such as the cake baker and the website designer — to make examples of them and humiliate them. There would be absolutely no difficulty in finding another baker or designer who was happy to serve these grievance hustlers.
As Charlton Heston said, “If you accept but don’t celebrate homosexuality, it does not make you a homophobe.”
3. I think it’s a needless concession to the homosexual agenda to (mis)appropriate the word “gay,” as they’ve stampeded most of us into doing. Thus a heretofore common and useful word is essentially ruined. If I were Glenn, I would have written “homosexual” everywhere above where he used “gay.”
4. Lawyer Steve might consider using paragraph breaks, for readability.
My fondness for Steve’s prose notwithstanding, I agree with every word of this.
First, enough with the language games! Like most words with Greek or Latin morphemes, “homosexual” is intended to be “scientific” and connotatively neutral. If it offends one, sorry, it’s the best we can do. As for “gay,” the word strikes me as more pejorative than euphemistic, suggesting that sexually disordered men are disproportionately lighthearted and light-minded — not “serious” individuals. This is not my experience.
Ages ago I attended a private, all-boys school in New York, where at least half of my teachers were homosexual men, whom I generally admired and enjoyed. Impeccably well-dressed, impeccably well-spoken, professionally well-prepared and well-equipped for their work, they were above all self-assured, neither hiding nor flaunting what they were. While I was inwardly capable of deriding some of the swishier types as “fags,” I was never “phobic” — ie., possessed by an irrational fear — in their presence. They certainly weren’t among us as predators and “groomers,” and they most certainly weren’t there to advance an agenda which, as stated above, is “punitive,” vindictive, vengeful, and combative to the point of seeking dominance — all spiritual characteristics that fall under the rubric of “Satanic.”
‘Nuff said.
Constitutionally, a business owner is free to refuse service for any reason whatsoever.
America is now a post Constitutional entity, so the feds force people to associate with others they would rather not associate with.
The left hates the written US Constituion and freedom / not only of speech.
The lefties are trying to create a world where “normal” attitudes are unacceptable but any perversion is to be lauded, forced on people, and destroy anyone who disagrees which is, of course, what these clowns advocate. One of the ways these people try to destroy is by forcing huge legal costs upon their opponents in hopes that they’ll give up such as their attitudes towards firearms manufacturers. As I’ve said, lefties want to live like free-market capitalists but speak like communists on the barricades.