Editor’s note: Today's column is free to everyone, but most of Bernie’s content is exclusive to premium members. So, if you’re not a premium (paying) member, please consider upgrading. A paid membership gives you access to all of Bernie’s columns, audio and video commentaries, and participation in his weekly Q&As. Thank you.
It’s generally not a good idea for an opinion writer to begin a column about a controversial issue with, “I’m not sure how I feel about this one — I think both sides have a good argument.” Opinion writers aren’t supposed to waffle; they’re expected to come down on one side or the other — and with something resembling confidence and certainty. Wishy-washy doesn’t cut it.
Except — and here’s your wishy-washy alert — I’m not sure how I feel about a case that the Supreme Court is now considering, a case involving gay rights and religious rights — because I think both sides have a good argument.
The case involves a woman from Colorado, a graphic artist and website designer, Lorie Smith, who wants to offer wedding websites — but says her Christian faith prevents her from creating content that celebrates same-sex marriages.
My gut reaction is — too bad. Once you open a business, you have to serve the general public. That’s essentially what the Colorado law says.
It’s also what David Cole, the legal director of the ACLU, says in an op-ed for the New York Times. “Can an artist be compelled to create a website for an event she does not condone? … The answer would seem to be obviously ‘no,’” he writes.
“But that’s the wrong question,” he goes on to say. “The right question is whether someone who chooses to open a business to the public should have the right to turn away gay customers simply because the service she would provide them is ‘expressive’ or ‘artistic.’ Should an architecture firm that believes Black families don’t deserve fancy homes be permitted to turn away Black clients because its work is ‘expressive’? Can a florist shop whose owner objects to Christianity refuse to serve Christians? The answer to these questions would seem to be, just as obviously, ‘no.’”
The First Amendment, Cole acknowledges, gives all of us the right to hold and express what he calls “bigoted views” — but “it doesn’t give businesses the license to discriminate.”
But isn’t there a difference between a business that simply sells goods, whether the goods are cars or shoes or hamburgers, and one that is engaged in creative expression? Isn’t expression the very essence of “speech” — and isn’t speech protected by the First Amendment?
During oral arguments last week, Justice Neil Gorsuch — one of the conservative justices on the court — described Lorrie Smith as “an individual who says she will sell and does sell to everyone, all manner of websites, (but) that she won’t sell a website that requires her to express a view about marriage that she finds offensive.” Before you say, “That sounds reasonable,” consider what Justice Sonia Sotomayor, a liberal, wanted to know: “How about people who don’t believe in interracial marriage? Or about people who don’t believe that disabled people should get married? Where’s the line?”
For the record, Smith says she has no problem working with gay people — and she would, she says, if they needed help with graphics for an animal rescue shelter, for example, or to help organizations serving children — but not to celebrate a gay marriage.
If all this sounds familiar, it’s because five years ago, the Supreme Court heard a similar challenge to Colorado’s law. In that case, a baker named Jack Phillips objected to designing a wedding cake for a gay couple. That case ended with a limited decision — and set up a return this week of the issue to the high court.
At the time, I wrote:
If you open a store on Main Street, while you have the right to refuse to bake cakes adorned with Nazi slogans, you don’t have the right to refuse to bake cakes for gay weddings. Nazis aren’t a protected group in the Colorado civil rights law -- or any other state civil rights law; discriminating based on sexual orientation, however, is against the law -- and not only in Colorado.
I hope that someday the Court, while acknowledging the importance of a merchant’s religion, goes on to say that bakers and florists and photographers can’t turn away customers because of their sexual orientation. In my view, they shouldn’t have to deliver the cake or the flowers to the actual reception. Nor should they have to take wedding pictures at the wedding. That would be asking too much. But once you open your establishment on a city street, you shouldn’t be able to discriminate based on things like race, religion or sexual orientation.
But I readily acknowledge that it’s complicated.
The ground beneath my feet doesn’t feel as firm today as it did when I wrote those words almost five years ago. I’m still all in on gay rights. And I’m still uneasy with people who use religion to discriminate. But today, I’m more apprehensive than I was five years ago about government using its considerable power to compel people of faith — to require them — to either bake cakes or take pictures or create websites — or face financial penalties, or worse.
That said, I’m still not sure where I stand on this particular issue. I’m still not sure where we should draw that line between gay rights and religious rights. Every now and then even an opinion writer should be allowed to acknowledge that he’s conflicted, that both sides seem to have legitimate points, that life is complicated and it’s not all black or all white. We’re polarized enough these days. A little ambivalence isn’t the worst thing.
Tough ground Bernie. Some other complicating factors, the Colorado Commission tasked with enforcing state law has repeatedly demonstrated anti-religious animus in a way that throws up the red flag of a Title Six of the Civil Rights Act violation. Also, the very content of the Bible, Torah and Quran all disqualify gay sex as being within the bounds of accepted moral practice. Yes, these uncomfortable facts are often theologized around today ( please dear readers spare me the lecture as the theology is NOT my point) however there are many many millions of true believers worldwide who genuinely espouse the written confines of sexual morality as written in clear language in these foundational religious documents. Which state has the right to declare that one may not believe these boundaries if they want to be in a creative business? Colorado believes that it does and has been busy doing so. Constitutionally, there is a conflict between modern interpretations of the 14th Amendment and the classic definition of the 1st. Who wins? Who should win? I myself crossed the old " color line" with my choice of mate in the 1970's...In Birmingham, Alabama...it was NOT popular! It did cost me a portion of my family for nearly 20 years. However, my African-American wife and I never once thought of filing a suit ( Loving v Virginia was clearly the law and will never be struck down). We left those who believed us anything from wrong to evil, alone! We focused on friends, allies and fellow travelers. And now, all of these years later, nearly 20% of the American public are us! Perhaps a step back from the "forcing" idea might be a timely idea.
Confusing issue Bernie but I'm confused from another perspective. Maybe you can set me straight.
Bear with my limited law knowledge, but it appears to me this is another advocacy case that's not up to SCOTUS as it is not in the Constitution. Therefore, state law applies. My memory fades with age but I thought that the purpose of the court system, including SCOTUS, was to settle disputes and not to make law. I'm confused why SCOTUS would even take this on? I hope the conservative members of the court remember how they handled abortion. It's up to the states unless state laws violate the constitution. And if they want to regulate from the federal level, it's up to congress to do so. They tried a few years ago and it never made it out of congress.
Further, I consider myself a Christian Conservative. If I was in Ms. Smith's shoes I would fully provide my web services to gay marriages. God is God and Business is Business. That's my two cents.