David Boaz / December 06, 2022
People who should know better — who surely do know better — keep misstating the legal issue in the cases brought by individual creators who don’t want to be forced to create cakes, floral arrangements, photography, or websites for same-sex weddings. The question in Monday’s argument before the Supreme Court, as the Court defined it, was “Whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist’s sincerely held religious beliefs, violates the Free Speech or Free Exercise Clauses of the First Amendment.” That is, the issue is compelled speech.
But distinguished legal scholars and journalists keep misstating the cases as whether a service provider can refuse service to certain types of people, such as gay people. For instance:
In the New York Times, David Cole — who taught for 26 years at Georgetown Law School before becoming national legal director of the ACLU — writes, “The right question is whether someone who chooses to open a business to the public should have the right to turn away gay customers.” But Lorie Smith doesn’t want to turn away gay customers. She only wants to decline requests to create websites for gay weddings. She says she happily serves LGBTQ customers who come to her for other sorts of websites.
In the Los Angeles Times Erwin Chemerinsky, dean of the UC Berkeley law school, says Smith will be in violation of a “Colorado law [that] prohibits businesses that sell or offer services to the public from discriminating based on disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.’ ” But again, Smith doesn’t want to discriminate against any person. She just doesn’t want to design websites that promote what she sees as offensive ideas. Presumably she would turn down a straight man who wanted her to create a website for the same‐sex wedding of his friends.
In the Washington Post Robert Barnes connects Smith’s case to that of another Coloradan, Jack Phillips of Masterpiece Cakeshop, who several years ago declined to create a cake celebrating a gay wedding. A wedding which, by the way, had been held in Massachusetts because the state of Colorado refused to allow gay people to get married at the time. Barnes notes that Phillips “is currently in [new] litigation over his refusal to create a cake for a transgender customer.” But that again is wrong. There’s no evidence that Phillips would refuse to create a cake for a transgender person; he did decline to create a cake that celebrated her gender transition.
In all these cases the issue is whether being required to use your creative abilities to celebrate an event that you regard as immoral constitutes “compelled speech” under current law. The distinction between refusing to serve gay customers, and refusing to participate in a particular celebration requested by a gay customer, may not be obvious to laypeople. But it’s an important distinction, and one that is not obscure to legal scholars and journalists. They should state the position of the bakers, website designers, and other creators accurately.