I’ve been trying to come to grips with the recent supreme court
decision in ”301 Creative LLC vs Elenis.” Elenis, by the way, refers to Aubrey Elenis
who was the Director of the Colorado Civil Rights Division at the time of the
court case filing. Lorie Smith was the Plaintiff. She filed a lawsuit against the State of
Colorado because she wanted to expand her website design services to include
wedding websites. However, she only
wanted to design websites for marriages between “one man and one woman.” Advertising this restriction (as well as operating
on it) would contravene the Colorado anti-discrimination Act. The state denied her lawsuit which was
subsequently appealed to the supreme court.
The case has been described as at the intersection of anti-discrimination
law in public accommodations and the free speech clause of the first amendment. The public accommodation law stems from Title
II of the Civil Rights Act of 1964.
Disabilities were added to the original protected groups in 1990 and
sexual discrimination and gender identity were added in 2020. The first amendment says:
Congress shall make no law
respecting an establishment of religion or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a redress
of grievances.
My gut reaction to Lorie was that she
was asking permission to put a sign out that was equivalent of “whites only,” although,
in this case, it was “monogamous, heterosexuals only.”
But then I thought about how I
would feel if I was asked to create a design for a white nationalist neo-Nazi fascist
couple. Maybe with some tastefully placed swastikas on
the page and a link to family pictures of Hitler in better times.
Of course, white nationalist neo-Nazis are not
a protected group (yet). But I can understand
how personal beliefs can conflict with elements of your job. Maybe, as a mostly unobservant Jew, I could
imagine being a web designer who would prefer to avoid having to deal with crucifixes
and persecuted images of Christ with nails and rivulets of dripping blood as
design elements on a wedding website.
(Though it might serve as a projected future for the happy couple, or at
least one of them).
What is it about faith, about the doctrines
of a person’s religion that requires you to preselect your customers so
completely that you will not acknowledge them as human beings? Better to have them know ahead of time your
opinion of them, so that you don’t have to look them in the eyes, refusing to recognize
their humanity, of having emotions of love, of caring, of being able to commit
themselves to a long-term relationship.
The entire idea behind protected
classes and public accommodations is to compel people to interact with those
that they would otherwise exclude. Sometimes
you have to “fake-it till you make it.” Our
better selves suck-it-up and act appropriately when we want to scream our
objections, in the service of civility, to go along to get along. Respect is often about keeping in check beliefs
that you would otherwise express at the expense of other people’s beliefs. If some people prefer segregation, then, at
least limit their efforts to times when they are outside of work, outside of
the more public sphere of commerce. If
you are a member of American culture. If
you live in the United States, then you must at least act in accordance with
the nation’s laws. And the law says that
you can not exclude protected groups from public accommodations.
Now, in terms of your free speech,
you can say quite a bit before you get into trouble. You could say, for example, to a prospective
couple that has come in for a consult on web design that you think they are an
abomination of nature, that they are the devil’s work and are destined to go to
hell. The couple could then ask you how much your services
cost or could just get up and leave to find another merchant.
Maybe you could tone it down a
bit. Talk about your faith in the bible
and in various interpretations of comments made in it regarding homosexuality. You might say, “thank you for coming in. I’m not sure I can do my best work for you,
however, as I am repulsed by the very thought of you two having sex.”
I don’t know, maybe you could come
up with some other explanations for how you would be paralyzed from writing
words of comfort and celebration, or unable to post pictures given to you of
the happy couple preparing for this auspicious occasion.
What I see you doing, Lorie Smith,
is coping out. You are a coward,
unwilling to face, face-to-face, the people with whom you disagree and your own
fears about them. No one is questioning
your faith, your religion, your commitments.
They are only asking you to give them the same consideration you give to
other human beings.
Within the constraints of your socio-economic
circumstances, you drive on the same roads, you shop in the same stores (or, at
least, once did), and perhaps, even within the confines of the buildings in
which you pray to your god, you share space with some of the very same people
you are unwilling to affiliate as part of your work.
Will you design a website for a
Jewish wedding? People who don’t believe
in your New Testament, who don’t believe in your son of God? And Muslims?
Will you design their wedding website?
And how about Hindus? How about atheists? Are you planning to have your prospective customers
fill out a questionnaire before your first consult? Just in case their particular religious affiliations
are not superficially apparent. And what
if they have some rare genetic difference?
Perhaps an XXY chromosome trisomy that ambiguates your ability to
determine if they are a man or a woman?
Do you give them the benefit of the doubt by how they dress? Would serving them and their intended spouse
confer the same contravention to your faith as a more obvious non-heterosexual
couple? Perhaps a strip search will be
necessary?
Perhaps it may be better to say on
your website and in your advertisements for your services that you are a Christian
fundamentalist who believes in the literal word of the bible. This won’t offend anyone. It won’t exclude anyone. It doesn’t violate any public accommodations
clause. A phrase of this sort will let
people know what they can expect from you.
And they, not you, can then make the choice of whether to do business
with you or not.
As to the not-normal supreme court majority, the wisdom of king Solomon seems to have eluded you on this one. Public accommodation laws are laws. Hanging out a white’s only sign is a thing of the past, or so I hope.
