"For what is a man, what has he got?
If not himself then he has naught
Not to say the things he truly feels. . . .
[I] did it my way.""My Way." Lyrics by Paul Anka.
An attorney writes that the Supreme Court got it right in the Colorado website designer case.
The plaintiff, Lorie Smith said she disapproved of gay marriage, but that a Colorado law forbade her from publishing a statement on her website saying "I will not be able to create websites for same-sex marriages. . . Doing that would compromise my Christian witness." The Supreme Court decided in her favor.
Maybe my first impression -- dismay at the Court's decision -- was misplaced. Maybe the issue is free speech, not empowering prejudice under the cover of "free exercise of religion." Maybe the Court is protecting people from being forced to express things they don't believe.
The case was manufactured, but the plaintiff's supposed intention was to announce that they won't work on websites that promote same-sex marriages. That policy, if implemented, would have run afoul of Colorado law. They proposed statement strikes me as bullying and uncivil. It stigmatizes gay marriage. But free speech means that people can say and write nasty things. That isn't what the case was about. It was about whether a business must create expressive material they object to. I can sympathize with that. I understand an advertising firm declining to do tobacco ads. I understand a campaign consultant deciding not to advise a candidate they don't support. I delete and do not publish obscene pro-Trump comments submitted to this blog by a local Republican activist.
Richard Friedman is a college classmate. He retired last year after nearly 47 years as a lawyer with the U.S. Department of Health and Human Services.
Guest Post by Richard Friedman
I think the Court reached the clearly correct result in the 303 Creative case. The "conduct" at issue was the creation of a website and graphics for a wedding. The creation of those products was stipulated by the parties to be expressive in nature. (For the non-lawyers, a "stipulation" is an agreement between opposing litigants as to a fact.) The dissent repeatedly tries to characterize the plaintiff's position as discriminating on the basis of the identity of the customers, but that attempt is belied by the other stipulations -- that the plaintiff was “'willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender,' and she 'will gladly create custom graphics and websites' for clients of any sexual orientation." Further, "She will not produce content that 'contradicts biblical truth' [as she understands it -- RF] regardless of who orders it." See the opinion of the court here.
In other words, she would accept a commission from a same-sex couple for a website for an opposite-sex wedding, but would decline a commission from an opposite-sex couple for a website for a same-sex wedding. The dissent finds the prospect of such commissions laughable, but it is hardly such. A same-sex couple could commission a website for the wedding of their daughter who was marrying a man, and an opposite-sex couple could commission a website for the wedding of their daughter who was marrying another woman.
Since the discrimination was not on the basis of who the client/customer was, but rather on the basis of the message that was to be conveyed by the service, I believe that the dissent is plainly wrong, and the decision correctly.
One is free to say or write just about anything you want. This case was not about a woman being denied her right to express her opinion or her belief.
One is also free to refuse to do business with a business with which you disagree (a tobacco company), or to refuse endorse a candidate for office whom you oppose. Those are not protected classes. The one thing you cannot do is deny service to someone from a protected class, based on the class itself. That's precisely what this woman wanted to do, and she wanted to do it proactively. She KNEW she would be in violation of long-standing law, so she attempted to circumvent the law with an imaginary case.
OK. Yes, freedom of speech, not discrimination could have been the right issue here if there had been an actual case, but there wasn’t. RF states: “The creation of those products (a website and graphics for a wedding between two men) was stipulated by the parties to be expressive in nature.” Wrong. There was only one “party,” the plaintiff; there was no “defendant.” This case should never have gone to the SCOTUS, or any other court for that matter. While I may agree with RF’s reasoning, I am concerned that this is an example of an activist conservative Supreme Court looking for cases they can decide based on right-wing political and religious dogma. (Buy me a cup of coffee and I’ll tell you what I REALLY think.😉)