In its next term, the Supreme Court will hear the case 303 Creative LLC v. Elenis, regarding whether a Colorado web designer who creates web sites for weddings must create them for gay weddings. A line from the 10th Circuit Court of Appeals’s July 26, 2021, ruling indicates the key problem: It says Colorado’s Anti-Discrimination Act “permissibly compels Appellants’ [303 Creative’s] speech.” But forcing someone to say something they disagree with obviously violates their rights. The right to speak entails the right not to speak.
At issue is not whether the owner of 303 Creative is a bigot and morally wrong to discriminate. Such is the case in my view. At issue is whether the state violates the owner’s rights to freedom of speech by forcing the owner to produce gay-themed content as a condition of staying in business. It does. In this matter, people have the right to be bigots. If that seems strange to you, bear in mind that most things that are immoral are properly legal.
We are not talking about 303 Creative refusing to serve gay people. The court concedes the business is “willing to work with all people regardless of sexual orientation” and is “also generally willing to create graphics or websites for lesbian, gay, bisexual, or transgender (‘LGBT’) customers.” At issue is the contents of the product. The business wishes to “offer wedding websites that celebrate opposite-sex marriages but . . . refuse to create similar websites that celebrate same-sex marriages.”
The court mentions the Masterpiece Cakeshop case, but the issues surrounding 303 Creative are even more obvious, because a web site obviously includes explicit speech pertaining to the genders of the participants. It is possible to bake a cake for a gay wedding that does not obviously convey a gay theme; it is impossible to create a web site for a gay wedding that does not obviously convey a gay theme.
This customer-product distinction is important. Let’s say a bakery had some pre-made generic wedding cakes on the rack, and two couples came in, one straight, one gay. If the bakery refused to sell a pre-made cake to the gay couple but sold the exact same cake to the straight couple, that obviously would be discriminatory. Unless you think anti-discrimination law should be totally thrown out—and hardly anyone thinks that—then you’ll have to allow that government properly may outlaw such discrimination.
But then let’s say the straight couple said, “Your pre-made cakes look nice, but we want a custom cake for our wedding next week. We want a little statue of a man and a woman, and we want the cake to say, ‘Congratulations Joe and Sally.'” The gay couple said something similar, but asked for a little statue of two women and wanted their cake to say “Congratulations Sue and Sally.” Let’s say the bakery accepted the first order but refused the second.
I want to say that people have an absolute right to control the content of the works they create (subject to contractual obligations). I think that is required by the First Amendment and by the right to free speech. If a Muslim wants to decline orders involving images of God or of a prophet, fine. If someone wants to refuse orders disparaging some individual or group, fine. If a conservative Christian wishes to refuse orders celebrating homosexuality or transgenderism, okay. Such discrimination is wrong, but government should not intervene. I’m fine with people complaining and even organizing a boycott, but government should stay out.
Here is a more difficult question: Can what appears to be the exact same product to an outside observer in fact become imbued with meaning because of its background and intended purpose? To me the answer clearly is yes. We all recognize that things can acquire sentimental value to particular individuals. A vase that strikes me as worthless junk might represent a loving relationship to its owner.
This is relevant to the Masterpiece Cakeshop case. The original 2012 events involve someone asking for a cake specifically for a gay wedding. Maybe if the person placing the order had just said it was for a wedding, the baker would have delivered a suitable product. It’s hard to say. But, in fact, the order was specifically for a cake celebrating a gay wedding. That imbued the cake with meaning, whether or not it changed what the final cake might have looked like.
Consider the latest case involving Masterpiece Cakeshop, in which a Denver court found against the bakery. As Nico Lang tells the story, Autumn Scardina called the bakery to order a pink and blue cake. Initially the bakery agreed. But then (and this obviously was a setup) Scardina mentioned that the colors signify her coming out as transgender, and the bakery then refused the order. Scardina, a lawyer, sued.
Let’s say someone had ordered a pink and blue cake to celebrate the birth of twins, the bakery had accepted that order, and that cake would have looked exactly like the cake that would have been delivered to Scardina, had the bakery made it. To me, what this shows is that background and intentions matter. Even though, physically, it would have been the same cake, it would not have been the same cake from the perspective of people’s viewpoints. And people’s viewpoints do matter, very much.
Let me offer another though experiment. Let’s say someone ordered a perfectly round, white cake from a Muslim baker, and the baker accepted the order. But then the person ordering the cake told the baker, “You see, this perfectly round, white cake represents to me the image of God. The whiteness represents God’s purity, and the roundness his perfection. I believe that when I look upon this cake, I will see in it the face of God.” Are Colorado courts prepared to say that a Muslim baker is required to bake a cake that the person ordering it insists is an image of God?
We’re talking about what things mean to people. We can’t just look at the physical object involved. Reflect on the deep tensions over religious iconography, or the meaning of two crossed lines. Colorado bureaucrats and courts should go easy when thinking about forcing others to create objects rich with intention and meaning. I’ll be interested to see how the Supreme Court handles such matters.
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