Earlier articles reviewed the 303 Creative vs. Elenis case, pending before the Supreme Court, in which a web designer, Lori Smith, wishing her work to express support for traditional opposite-sex marriage, is seeking to expand her business to include web design for weddings without having to provide web design for same-sex weddings. The claim that removing social stigma is (at least part of) the purpose of antidiscrimination law, and overcomes the prohibition in free speech doctrine against compelled speech was dealt with in the first article in this series, while the claim that products offered for sale on the market may legitimately involve compelled speech, since most people would not interpret them as the beliefs of the vendor was dealt with the in the second article. The first claim is essentially a claim to freedom from offense, which does not exist even for speech very offensive to one or more persons, The latter claim does not overcome the fact that compelled speech is being required, as briefs supporting 303 Creative made clear.
Free speech doctrine is much stronger in current jurisprudence than free exercise doctrine, and a majority of Supreme Court justices seemed favorable to protecting it in the December 5 oral arguments. Prominent among free speech cases noted in the briefs supporting 303 Creative are West Virginia State Board of Education vs. Barnette (1943) in which the Supreme Court declared that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein,” and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995), which declared that a veterans group did not have to alter the message it conveyed in its parade by including an LGBT group.
Briefs supporting the State of Colorado in its interpretation of the Colorado Anti-Discrimination Act (CADA) essentially conflated the expressive product requested with customers in antidiscrimination categories. Additionally, they stressed the difficulty of distinguishing between expressive and non-expressive products. The claim that the status of a customer cannot be separated from their personal conduct is typical of legal opinion and court decisions that have denied liberty of conscience against homosexuality and transgenderism. What is different in 303 Creative vs. Elenis is that the Supreme Court is for the first time considering such a case strictly on free speech grounds (Masterpiece Cakeshop was decided on free exercise grounds, based on the treatment of Jack Phillips in the Colorado Civil Rights Commission, in which a commissioner attacked appeals to religious freedom). Web design by its nature requires creative involvement, so to require Smith to design sites for same-sex weddings clearly involves expression for ideas she does not believe and is thus compelled speech. Important as well is the fact that both the State of Colorado and the lower court (federal Tenth Circuit) that decided against 303 Creative concede that web design is “pure speech.”
Expressive Products as Merchandise
The brief of the American Civil Liberties Union against 303 Creative at least at one point seemed to deny this, apparently maintaining that expression must be an explicit statement asserting what one does not believe to be coerced speech:
“The Colorado Anti-Discrimination Act (CADA) does not prescribe any particular message that artists—or anyone else—must express. If it did, the ACLU would challenge the law as a content-based compulsion of speech. CADA, however, does not regulate artists as such, but only businesses that choose to sell to the public at large. And even as to such businesses, CADA does not compel them to produce or sell any particular product or service, but only requires that they not discriminate in sales on the basis of race, sex, sexual orientation, or other protected characteristics. Under Colorado’s law, artists are free not to offer their services “to the public,” and are also free to select the goods and services they want to sell to the public.”
This seems to involve not only the denial that paid expression (here facilitating same-sex marriage) is speech that may not be compelled, but the usual claim against conscience objection in sexual matters, which is that one can avoid complicity in objectionable activity by avoiding any area (such as wedding services) where complicity might be required. But this is a serious denial of the civil liberties of objectors, since it requires complicity in objectionable activities (activities that the objector believes to be evil). But more importantly for the 303 Creative case, it treats personal expression simply as merchandise that one is obliged to offer when the state requires it.
That the ACLU regards paid expression in the area of LGBT issues not to be a “message,” but rather simply a product bound to the status of the buyer is made clear elsewhere in the brief:
“CADA merely prohibits discrimination in sales by businesses that choose to sell to the public, without regard to whether a business is ‘expressive’ or ‘artistic,’ it is a content-neutral regulation of commercial conduct, not a content-based regulation of speech. Colorado’s regulatory interest in ensuring nondiscriminatory access to the commercial marketplace is unrelated to the suppression of expression.”
CADA indeed may make no exception for expressive products, but it is subject to the controlling authority of the U.S. Constitution, which is interpreted by strong precedent to prohibit compelled expression (such as saluting the flag). Words may or may not be used, but expression remains expression, even if only a custom designed Pride flag or a rainbow-colored cake. Indeed, one has to wonder whether expressive professionals and artists might be required to provide text in articles offered for sale (such as the words “support gay marriage,” which was required for a custom cake to be supplied by Asher’s Bakery in Northern Ireland). But as the brief of Americans for Prosperity Foundation in the previous article pointed out, paid expression is not exempt from First Amendment protection, nor is this protection limited to “professional speech,” (such as that of journalists or lawyers) whose work is free of “commercial trappings.”
The ACLU stressed the difficulty of discerning nonverbal expression, and proposed a variety of hypothetical situations unlikely ever to occur to illustrate the “unworkability” of discerning expressive products:
“If 303 Creative is correct, could a bakery that opposed celebrating Black families refuse to sell a birthday cake to a Black mother? Could an architecture firm that serves the public refuse to design homes for Muslims because it opposes their religion? Could a test preparation business that objected to the number of Asians in elite colleges turn away Asian students? Could a restauranteur opposed to ‘mixed marriage’ put up a sign in its window saying ‘No inter-racial or inter-faith couples served?’ 303 Creative makes no effort to answer any of these questions.”
In all of the above examples, unless custom work is involved, the product or service is standard. Even the design of homes has no reason to differ between antidiscrimination categories. If the buyer wants some special feature the architect objects to, he or she can find another architect. The merchant is not expressing ideas that he or she disagrees with. The only basis for discrimination in these examples is service to people in that particular antidiscrimination category.
These examples indicate something of the problem with behavior-based antidiscrimination laws. Race and (biological) sex can be treated as free and equal, even if one thinks they are not. Personal behavior and inclination simply cannot be treated as free and equal. Protected status means that there can be no adverse judgment (discrimination) against people covered by antidiscrimination categories, so there can be no question of the “harm” caused by not making an adverse judgement. Any judgment must always be “affirmative.” The law can dogmatically declare particular behaviors to be above adverse judgment, but it cannot consistently ground this law in freedom or equality, because there is no immutable characteristic. In the case of LGBT identities, legislators have chosen to make persons who exhibit particular sexual behaviors and inclinations to be above adverse commercial judgment. There is the added problem that anyone can claim to be in an LGBT category or not at will (and so in today’s environment gain access to spaces reserved for the opposite sex), whereas race and biological sex cannot be changed (even if sexual anatomy can be mutilated). But the law cannot constitutionally require expression, even expression offered for a price, which involves affirmation of those behaviors or inclinations.
Elsewhere in the brief the ACLU is able to discern web design as expression:
“The fact that 303 Creative’s web design service is expressive does not insulate its sales conduct from CADA’s regulation.”
Of course, Lori Smith is willing to sell anything that she does sell to all customers in all antidiscrimination categories. But she does not provide design for same-sex weddings, as that is her own personal expression.
And yet expressive products somehow can be non-expressive:
“Colorado’s interest in requiring nondiscriminatory treatment of customers has nothing to do with expression, but is a content neutral, generally applicable regulation of the commercial conduct of sales.”
Again, CADA makes no provision that expression will not be compelled in the course of service to the public, but that does not exempt CADA from the controlling authority of the First Amendment, which guarantees free speech, and thus prohibits the state from compelling speech. Regarding Colorado’s antidiscrimination interest, the ACLU’s analysis means that expression can become simply a commercial product and may be required by the state. Is it in fact true that compelled speech here is not the state’s intent? Given the intense emphasis that supporters of CADA lay on removing stigma from protected groups, that is to be doubted. As was noted in the previous article, the 10th Circuit’s ruling acknowledged that the intent of the law was to remove certain ideas from public dialog. The Tenth Circuit also admitted that the result of its interpretation of CADA was to compel speech.
Conscience Protections as a Problem
The American Bar Association likewise offered a brief opposing 303 Creative. It advances the usual argument made against conscience claims in LGBT cases that discrimination against LGBT activities is discrimination against persons:
“As long as public accommodations laws have existed, they have been challenged based on businesses’ asserted right to choose their customers. Congress itself considered and rejected many such arguments when it enacted the Civil Rights Act of 1964.”
Defendants in all conscience cases involving sexual liberation and religious liberty have held that they are willing to serve LGBT identifying persons but are not willing to facilitate activities they believe to be sinful or evil. The logic against conscience claims in this area conflates people with their behavior, arguing that the behavior discriminated against is the protected characteristic. But in the 303 Creative case, the service required is personal expression advancing ideas Lori Smith disagrees with. And not only an idea that she disagrees with, but speech regarding same-sex marriage, which the Supreme Court promised in the Obergefell decision would be free from coercion. As with the opinion of the ACLU, one has to wonder if the ABA would think it proper to require a wedding cake with the words “support gay marriage.” It seems that the logic of their argument would. The U.K. Supreme Court, however, unanimously judged it a violation of free speech, noting that the cake would have been refused to anyone, LGBT identifying or not. Similarly, Smith will deny web design for same-sex weddings to anyone and provide design for opposite-sex weddings to anyone, LGBT identifying or not.
Also worth noting, if not directly related to the case, is that for the ABA and other groups and individuals offering opinions against 303 Creative, there is clearly the assumption that it is entirely proper to extend the strong legal prohibition against racial discrimination, which has a strong basis in the Civil War amendments (Thirteen through Fifteen), to an ever growing number of antidiscrimination categories. It may be legal to create new antidiscrimination categories, but they diminish individual and corporate freedom, as this writer noted a number of years ago. Sex in particular is not mentioned in the Constitution (except in regard to voting). As noted above, sexual orientation and gender identity (SOGI) categories are based on behavior and inclination. Personal behavior for anyone involves personal character and possible harm to others and has no immutable characteristic. In effect, legislatures have simply dogmatically declared homosexual behavior and self-defined sex or “gender” to be “harmless,” with no possibility of adverse judgment against them. (This was noted by the late Associate Justice Antonin Scalia, in his dissent from the Romer vs. Evans decision (1996), which voided Colorado’s Constitutional Amendment 2, prohibiting local homosexual rights ordinances). Additionally, since “gender identity” has made sex self-defined, separated from the body, the new concept of “gender” could mean anything, with unknown legal requirements which will necessarily affect others
The ABA seems particularly eager to attack conscience protections. It repeatedly notes the conscience claims made in favor of racial discrimination. But the basis of those claims was not strong. In pre-1960s America, religious or moral claims would ultimately have been made to religious texts of the Judeo-Christian tradition – the Bible, Christian creeds and confessions, or the Talmud which are little concerned with race, but much concerned with sex, marriage, and the family. There was indeed strong emotion behind religious or moral claims to racial discrimination; animosity to blacks was strong, particularly in areas where racial segregation was commonly practiced. But that hardly adds up to a reasonable conscience claim. How many southern whites for instance, believed they would be sinning, incurring the eternal wrath of God, by serving black customers? Service to blacks was rather a cultural preference, simply something they did not want to do.
Opposition to conscience claims is particularly disturbing, because American civilization was founded by people who came to the new continent to live as they believed God wanted them to live, and whose confidence in their eternal destiny depended on obedience to God as they understood his commands to be. Mark David Hall of George Fox University spoke a number of years ago about the numerous laws protecting conscience which have been enacted over generations. Conscience protections are an admission that human law is not infallible, and people should not be required to take actions they believe to be evil. Free speech gives a general protection against making statements one believes to be sinful or evil.
Other briefs offered against 303 Creative and in support of the State of Colorado reiterated these same points, analogizing discrimination based on sex to discrimination based on race, conflating customers with products requested and the customer’s personal behavior, holding expressive products to be ordinary merchandise for sale, and holding expressive products too difficult to discern.
As noted earlier, 303 Creative vs. Elenis is the truly blockbuster case in the area of sexual liberation versus religious liberty. If 303 Creative is successful, it will give a general rule to resolve such cases, which Masterpiece Cakeshop did not. Whatever the outcome, Christians are obliged by Christ’s command in Scripture never to facilitate sin. How we should respond in any possible outcome, and particularly the potential for claims of emotional distress to threaten the freedom of Christians to declare the whole counsel of God (not merely on sexual issues, but generally, and particularly in religious education and evangelism) and to obey him as commanded in Scripture will be discussed in a subsequent article.
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