Design the Site, Bigot
There’s no double standard. There’s one standard, and it’s that you lose.
On Monday the Supreme Court heard oral arguments in 303 Creative v. Elenis, another case involving a conflict between Colorado's civil rights bureaucracy and a religious small business owner adhering to the traditional view of marriage as between one man and one woman.
The lead plaintiff is Lorie Smith, owner of 303 Creative, a graphic design business in Colorado. Smith wanted to expand her business to include website designs for engaged couples in the marriage-planning process. Smith is a Christian, and refused to create marriage websites for unions whose relationships contradict biblical norms, such as public adulterers, polygamists, and same-sex couples. She wanted to place a note on her website to that effect and "respectfully" direct those in such unions to other graphic artists in the area, per her attorney.
Smith had not yet expanded her business to include website design, but feared the state of Colorado would apply its state anti-discrimination law to prevent her from exercising her conscience rights. Colorado's anti-discrimination statute makes it illegal to deny services to people on the basis of their membership in a protected class, and has applied the statute in the past to prevent religious business owners from declining to help celebrate the "marriages" of same-sex couples.
The last time Colorado's civil rights law was challenged at the Supreme Court, the Court found in favor of Jack Phillips of Masterpiece Cakeshop, who refused to bake a wedding cake for two men entering a same-sex union. The Court ruled 7-2 on the grounds that the Colorado Civil Rights Commission's "hostility was inconsistent with the First Amendment guarantee that our laws be applied in a manner that is neutral towards religion" in resolving Phillips's case.
As evidence of the commission's hostile attitude, the Court cited one Colorado commissioner who said appeals to religion like the one Phillips was making have "been used to justify all kinds of discrimination throughout history" including the Holocaust, and that Phillips's appeal to religion was an example of "one of the most despicable pieces of rhetoric that people can use."
The Court ruled in favor of Phillips only on procedural grounds. In the majority opinion, Justice Anthony Kennedy said it was "inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law" to speak dismissively of religious believers. The majority refused to find substantively in Phillips's favor, and limited its opinion to the behavior of the civil rights commission. As Michael Brendan Dougherty has said, the Court "practically instructed Colorado to go after him again but not call him a Nazi."
The oral arguments in 303 Creative favored Smith, as the Court's conservative majority seems poised to find that website design is expressive conduct and therefore protected by the First Amendment. The arguments nevertheless were evidence of how much ground defenders of traditional marriage have lost since Obergefell. Several justices implicitly compared the traditional view of marriage, as a union between one man and one woman for the propagation and rearing of children, to opposition to interracial marriage and opposition to the marriage of people with disabilities. Justice Jackson conjured up a bizarre hypothetical about a person denying black children access to a Christmas photography station at the mall, with the less-than-subtle implication that such discrimination is similar to the plaintiff's position on marriage.
The three attorneys present—Smith's attorney, the attorney from Colorado, and the United States solicitor general—traded arguments about the nature of Smith's conduct. Smith's attorney claimed website design is speech, and therefore cannot be compelled. The solicitor general argued that gays and lesbians are a protected class, and failing to recognize their union as a marriage constitutes status-based discrimination. Both sides made appeals to race-based hypotheticals—the attorney for the United States claimed that if the Court allowed Smith's conduct, it would open the door to similar conduct by those opposed to interracial marriage. Smith's attorney claimed that if Smith were made to design the website, a black designer would by the same principle have to design something for a white supremacist. Both sides seemed more concerned about the implications for black Americans than the implications for their respective clients.
It is understandable that Colorado and the United States would make these appeals: the specter of Jim Crow segregation is more potent than the argument that a religious small-business owner should be cowed into submission. I also understand that Smith's attorney has to play the game. But wouldn't it have been better for her to make the case that same-sex unions and interracial marriages are utterly and completely different—one is not marriage, the other is—and that comparing the two is a category error?
After all, while Smith's attorney retreated to neutral principles about First Amendment protections for expressive conduct, the United States and Colorado made a much more muscular case: the groups we like deserve protection, those we hate do not.
In an exchange between Justice Amy Coney Barrett and U.S. Solicitor General Brian Fletcher, Barrett asked Fletcher whether a gay website designer would have to design a website for a Christian or Catholic group whose explicit purpose was defending traditional marriage.
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"I don't think they do, Justice," Fletcher said. "I don't think that's a refusal based on status."
It's not that there are two standards—one for the gay designer, and one for the Christian designer. There's one standard, and it's that you lose.
Editor's note: A previous version of this piece incorrectly claimed that former Justice Anthony Kennedy served as chief justice.