Can a Web Designer Be Forced To Make Gay Wedding Pages? The Supreme Court Will Decide

[Kamaji]

Can a Web Designer Be Forced To Make Gay Wedding Pages? The Supreme Court Will Decide

Will this follow-up to the famous wedding cake case finally decide if this is mandated speech violating the First Amendment?

By Scott Shackford
February 22, 2022

The Supreme Court will finally be tackling the question of whether a public accommodation law can compel a business owner to produce messages that violate their personal beliefs as part of anti-discrimination protections.

Today the Supreme Court agreed to hear 303 Creative LLC v. Elenis. Lorie Smith owns and runs 303 Creative, a graphic website design firm based in Colorado. Smith planned to design and host sites for weddings, but she has religious objections to same-sex marriage and does not want to be forced to design and host sites for such weddings. This puts her at odds with Colorado's Anti-Discrimination Act, which prohibits discrimination against LGBT customers.

*  *  *

This case flows out of the Supreme Court's 7-2 ruling Masterpiece Cakeshop v. Colorado Civil Rights Commission. It's even from the same state. The Masterpiece Cakeshop case revolved around whether a baker could be forced to make a wedding cake for a gay couple. The Court ruled in the bakery's favor but actually punted on the central free speech question. The Court ruled that the commission had not neutrally applied the law, and commissioners had made statements indicating they had a bias against Masterpiece Cakeshop owner Jack Phillips' Christian beliefs.

Similarly, in a more recent case, Fulton v. Philadelphia, about whether a Catholic adoption agency could discriminate against gay couples, the Court dodged again. It ruled in favor of the adoption agency—not for religious freedom reasons, but because the law gave city officials discretion to grant exemptions, and therefore, it was not a neutrally applied law.

*  *  *

In the orders today that the Supreme Court will hear the case, the Court narrowed down the questions in the case to a single issue: "Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment."

Do not expect some sort of broad ruling that would radically rethink anti-discrimination laws. Just two years ago Justice Gorsuch and Chief Justice John Roberts joined the Court's more liberal justices in deciding that the Civil Rights Act of 1964's anti-discrimination protections included gay and trans people. This is specifically and narrowly about the limits of mandating commercial speech that compromises the values of business owners.




Source:  https://reason.com/2022/02/22/can-a-web-designer-be-forced-to-make-gay-wedding-pages-the-supreme-court-will-decide/

[roamer_1]

Has nothing to do with speech. This is about people participating voluntarily in a transaction. The very basis of business.

I have the right to refuse service to anyone for any reason. That is the very essence of 'voluntary'.

Furthermore, it is not a public place. It is my shop, my house, my computer. The public is there only by my leave. NO ONE has the right to cross my threshold otherwise.

These two principles need to be restored.

[Smokin Joe]

As to the first question: Oh Hell, no.

Besides, forced creativity always comes out looking like crap.

If they really want someone to give their best effort, just go to someone who will have their heart in it and quit suing people who would have to compromise their deep beliefs to comply.

[DefiantMassRINO]

Are gay couples a protected class under Federal law?

Does she require a license or permit from a local, state, or Federal agency to be in business?

Does her business get financial assistance from the goverment, i.e., the Small Business Administration?

[Kamaji]

Are gay couples a protected class under Federal law?

Does she require a license or permit from a local, state, or Federal agency to be in business?

Does her business get financial assistance from the goverment, i.e., the Small Business Administration?

It is state law that controls here.  The question is whether the state law violates the First Amendment.

[DefiantMassRINO]

It seems to be more about commerce than speech.

[EdinVA]

So if a special pronoun walks into a ford dealership and demands to purchase a GM, can they do it?

[Kamaji]

It seems to be more about commerce than speech.

The two are intertwined.  The First Amendment applies to commercial speech as well as to private speech.  The novel turn here is whether (a) being forced to include statements that one disagrees with on a product one is building constitutes forced speech, and (b) assuming arguendo it is "speech", whether the government can compel it.

It's a bit of a thorny issue, because the products on which these statements are being attached are bespoke, one of a kind creations, and not simply mass-produced fungible goods, so the end-result is more closely associated with the business that created them than would be the case, for example, if the product was just something stamped out in the millions by large industrial machinery.

On one end of the spectrum is the case where state law forced the producer to explicitly associate themselves with the statement being applied to the good in question, such as where the producer would be required to affirm the statement.  That is forced speech and a law that did that would almost certainly be unconstitutional.

On the other end of the spectrum is the case where someone orders 1,000 golf-balls from titleist that will be private label (i.e., they won't come in titleist branded boxes or otherwise have the titleist logo on them) to be stamped with the offending statement.  The golf balls are mass produced, with almost no human involvement, and certainly no direct creative involvement, and are fungible - any batch of balls will do, basically - and so that is probably not compelled speech.

But life is not binary, and there are a huge number of cases in the middle.

So, we'll see what the Court does when they are squarely faced with the issue without the ability to fob the decision off on some other ground.

[Kamaji]

So if a special pronoun walks into a ford dealership and demands to purchase a GM, can they do it?

Not germane to the question at hand.

[EdinVA]

Not germane to the question at hand.

Sure it is, someone wants to buy something you do not sell and know nothing about.. just because it is not intellectual property does not change the fact that it is a product.

[Smokin Joe]

The two are intertwined.  The First Amendment applies to commercial speech as well as to private speech.  The novel turn here is whether (a) being forced to include statements that one disagrees with on a product one is building constitutes forced speech, and (b) assuming arguendo it is "speech", whether the government can compel it.

It's a bit of a thorny issue, because the products on which these statements are being attached are bespoke, one of a kind creations, and not simply mass-produced fungible goods, so the end-result is more closely associated with the business that created them than would be the case, for example, if the product was just something stamped out in the millions by large industrial machinery.

On one end of the spectrum is the case where state law forced the producer to explicitly associate themselves with the statement being applied to the good in question, such as where the producer would be required to affirm the statement.  That is forced speech and a law that did that would almost certainly be unconstitutional.

On the other end of the spectrum is the case where someone orders 1,000 golf-balls from titleist that will be private label (i.e., they won't come in titleist branded boxes or otherwise have the titleist logo on them) to be stamped with the offending statement.  The golf balls are mass produced, with almost no human involvement, and certainly no direct creative involvement, and are fungible - any batch of balls will do, basically - and so that is probably not compelled speech.

But life is not binary, and there are a huge number of cases in the middle.

So, we'll see what the Court does when they are squarely faced with the issue without the ability to fob the decision off on some other ground.

I see this as forcing a person to use their talents and creativity to support something they may find offensive or immoral.

Finding something offensive or immoral is as personal as the act of artistic creation.

If there is no 'art' involved (a basic form of human expression), then anyone (else) could perform the necessary soulless task of cobbling together a web page or a cake, and there would be no ostensible reason to prefer one supplier over another, except price point.

This is a war against the very core of that expression, forcing by writ or mandate someone to perform when they find the basis for that performance offensive.

I don't see Jewish bakers being forced to make birthday cakes for Hitler for the Neonazis (something we would universally see as an offensive overreach), so why make Christians make any form of art for homosexual unions, be that arranging flowers, providing venues, baking cakes, or creating webpages?

[Kamaji]

I see this as forcing a person to use their talents and creativity to support something they may find offensive or immoral.

Finding something offensive or immoral is as personal as the act of artistic creation.

If there is no 'art' involved (a basic form of human expression), then anyone (else) could perform the necessary soulless task of cobbling together a web page or a cake, and there would be no ostensible reason to prefer one supplier over another, except price point.

This is a war against the very core of that expression, forcing by writ or mandate someone to perform when they find the basis for that performance offensive.

I don't see Jewish bakers being forced to make birthday cakes for Hitler for the Neonazis (something we would universally see as an offensive overreach), so why make Christians make any form of art for homosexual unions, be that arranging flowers, providing venues, baking cakes, or creating webpages?

We shall see.

[DefiantMassRINO]

The Feds have usually expanded anti-discrimination laws under the guise of the Commerce Clause (Article 1, Section 8, Clause 3 of the U.S. Constitution).

The vendor accepts government-issue currency: This note is legal tender for all debts, public, and private.

The vendor uses the Federal Reserve Banking system to receive, dispurse, and save funds.

The vendor is afforded Federal bankruptcy protection.

The vendor utiltizes the Internet, which is regulated by the FCC.

Refusing to provide service on the basis of sexual-orientation violates the gay couple's right to engage in commerce.

Requiring the business to accept business from a gay couple doesn't necessarily violate free speech, because the vendor can still exercise speech - thought, written and spoken opinion, and vote in elections.

[Kamaji]

The Feds have usually expanded anti-discrimination laws under the guise of the Commerce Clause (Article 1, Section 8, Clause 3 of the U.S. Constitution).

The vendor accepts government-issue currency: This note is legal tender for all debts, public, and private.

The vendor uses the Federal Reserve Banking system to receive, dispurse, and save funds.

The vendor is afforded Federal bankruptcy protection.

The vendor utiltizes the Internet, which is regulated by the FCC.

Refusing to provide service on the basis of sexual-orientation violates the gay couple's right to engage in commerce.

Requiring the business to accept business from a gay couple doesn't necessarily violate free speech, because the vendor can still exercise speech - thought, written and spoken opinion, and vote in elections.

Interstate commerce jurisdiction doesn't hinge on whether federal currency is used.  The Constitution directly gives Congress jurisdiction over interstate commerce, vel non.

And, at any rate, the law in question here is a state law, not a federal law.

[Smokin Joe]

The Feds have usually expanded anti-discrimination laws under the guise of the Commerce Clause (Article 1, Section 8, Clause 3 of the U.S. Constitution).

The vendor accepts government-issue currency: This note is legal tender for all debts, public, and private.

The vendor uses the Federal Reserve Banking system to receive, dispurse, and save funds.

The vendor is afforded Federal bankruptcy protection.

The vendor utiltizes the Internet, which is regulated by the FCC.

Refusing to provide service on the basis of sexual-orientation violates the gay couple's right to engage in commerce.

Requiring the business to accept business from a gay couple doesn't necessarily violate free speech, because the vendor can still exercise speech - thought, written and spoken opinion, and vote in elections.

If creativity is not the fundament of free speech, pray tell, what is?

Forcing someone to create something that violates their deeply held beliefs is a violation of their freedom of speech (expression). The gay couple can engage in commerce elsewhere, where their business would be welcome. Just as with flower arrangers, venue providers, bakers, and web designers, there is no sole source. They are free to shop around and find a provider who would be happy to have their business. (You can't tell me there are no GLBTQ+ people in those professions who would be enthusiastic about providing their services)

[DefiantMassRINO]

A state law requiring a public business to provide equal service to all doesn't violate Freedom of Speech nor Freedom of Religion, but, the Court may also not have standing to compel the business to provide service to a specific party.

[GtHawk]

So if a special pronoun walks into a ford dealership and demands to purchase a GM, can they do it?

Heck if I was the Ford dealership I would agree to sell them a GM, of course my mark up for that service might be pretty steep And I don't think the 'pronoun' would have any right to complain(not that that stops the entitled wankers) because they could always by a GM cheaper at a GM dealership.

[GtHawk]

A state law requiring a public business to provide equal service to all doesn't violate Freedom of Speech nor Freedom of Religion, but, the Court may also not have standing to compel the business to provide service to a specific party.

So we have freedom but not the right to exercise that freedom?

[Kamaji]

So we have freedom but not the right to exercise that freedom?

No freedom is unlimited.  Your freedom of movement ineluctably ends at the point of my nose.  Does that mean that you don't actually have freedom of movement, simply because you're not free to punch me in the nose?

[GtHawk]

No freedom is unlimited.  Your freedom of movement ineluctably ends at the point of my nose.  Does that mean that you don't actually have freedom of movement, simply because you're not free to punch me in the nose?

These lawsuits are not about law or freedom, there are certainly homosexual web designers, bakers, florists, etc., that are available to do the jobs for other homosexuals and you would think they would want to give their fellows business. This, as it has been from the first lawsuit is about forcing others to not only accept but bow to homosexuality as more than normal.

Close to fifty years ago when my now wife and I were looking for a church to be married in, I had no interest in her becoming Catholic any more than I staying Catholic, and one church refused to even allow us to look inside I never once thought 'Oh I need to sue this church and force it to let me be married in it'. The militant homosexuals however will go out of their way to find a situation to either bankrupt or force a business owner to bow to them. They are no better than the scum attorney that files ridiculous ADA suits against business owners simply to extort money from them.

And about your nose..........I'm thinking.

[Smokin Joe]

These lawsuits are not about law or freedom, there are certainly homosexual web designers, bakers, florists, etc., that are available to do the jobs for other homosexuals and you would think they would want to give their fellows business. This, as it has been from the first lawsuit is about forcing others to not only accept but bow to homosexuality as more than normal.

Close to fifty years ago when my now wife and I were looking for a church to be married in, I had no interest in her becoming Catholic any more than I staying Catholic, and one church refused to even allow us to look inside I never once thought 'Oh I need to sue this church and force it to let me be married in it'. The militant homosexuals however will go out of their way to find a situation to either bankrupt or force a business owner to bow to them. They are no better than the scum attorney that files ridiculous ADA suits against business owners simply to extort money from them.

And about your nose..........I'm thinking.

Well, there is a point where a nose might invade my air space...