All individuals deserve the same protection of the law, as clearly explained in the 14th Amendment. This law has played a major role in protecting members of the LGBTQIA-plus community against discrimination and hate crime. The law considers heterosexuals and non-heterosexuals equal.
Equal protection means that a landlord cannot refuse to rent to a tenant based on the applicant’s sexual orientation. A restaurant cannot refuse service based on sexual orientation. No one operating in the public market may deprive an individual of basic goods and services based on objections to a person’s sexual orientation or any other immutable trait.
This is how all rational people want it. The era of keeping blacks out of white-only businesses is long over and we don’t want anything like that to come back.
The law must respect and uphold the dignity and individual traits of all individuals. That’s why a case involving Colorado-based graphic designer Lori Smith could determine our future as a country of equal protection and free speech.
The US Supreme Court will hear the case (303 Creative v. Elenis) on December 5. Any ruling can have significant ramifications for members of the LGBTQIA-plus community.
Smith wants the court to release her from Colorado anti-discrimination law, which would otherwise force her to design unique same-sex wedding websites if she provides creative heterosexual wedding websites. On the surface, a ruling against Smith, one that says she must custom-design any website any client wants, might sound like a good thing for same-sex couples.
Conflicts are not always what they seem on the surface.
Smith is not proposing to deprive anyone of basic goods and services. She shouldn’t and can’t. She proposes to pick and choose what she will and will not design using her creative talents. Her websites would celebrate marriages. That’s quite different from selling gasoline, snow cones, rental space, or any other good or merchandise.
Due to firmly held religious beliefs, Smith can’t bring himself to design same-sex marriage venues in a celebratory spirit. If her state forces her to do so, she must also force her to design websites with other messages that violate her beliefs. By forcing her to create art without regard to content, the state could force Smith to design websites with swastikas or the statement “God hates” gays, a Kansas church slogan she’s likely to find repulsive.
Due to free speech and equal protection, the state cannot make value judgments that favor a popular message over a petty and extravagant one. You lack the authority to do so for a good reason. The state cannot give more approval to a private message than to a church. If it does, we have no freedom of speech or freedom of religion. We neutralized the First Amendment.
The Supreme Court has made this point in several rulings, but the most relevant to this case comes from a passage in Masterpiece Cakeshop v. Civil Rights Commission of 2017. That’s the case brought against the Commission after it punished cake designer Jack Phillips for refusing to order a custom cake to celebrate a same-sex marriage. Phillips sells cookies, cupcakes and other products to same-sex couples, as he should and should. He will not use his artistic abilities to perform marriages that contradict his religious beliefs.
The ruling sided with Phillips and admonished the commission, leaving open the big question: for the state to force artists to express what violates their values? If you evade the merits in the Smith case, there was no point in taking it. In the Phillips ruling, the court explained the problem of forcing speech on anyone, a point that should weigh heavily in Smith’s case.
“The Commission ruled against Phillips in part on the theory that any message on the requested wedding cake would be attributed to the customer, not the baker,” the majority wrote. “However, the Division did not address this point in any of the cases involving requests for cakes representing anti-gay marriage symbolism.” In these latter cases, the Commission sided with the cake designers who rejected the messages they objected to. They were politicized rulings, not decisions based on federal law.
The court made it clear that the commission erred in favoring messages that celebrate same-sex marriages over those that condemn them.
“Phillips’ religious objection was not treated with the neutrality required by the Free Exercise Clause,” the ruling said. “The interest of the State could have been balanced against Phillips’ sincere religious objections in a manner consistent with the required religious neutrality that must be strictly observed.”
The commission, the court argued, failed in its “solemn responsibility to fairly and neutrally enforce Colorado’s anti-discrimination law, a law that protects discrimination based on religion and sexual orientation.”
For the sake of the LGBTQIA-plus community, the court should rule in Smith’s favor, oddly enough. If not, then under the precedent and points of Phillips’ ruling, fans will force artists, including those in the LGBTQIA-plus community, to design hateful websites, cakes, paintings, T-shirts and more. If the state forces the hands of artists, all artists lose the same protection of the law and freedom of expression.