Court must answer nagging rights question with daily editorials
The Supreme Court of the United States must stop ignoring a difficult question. The national legalization of same-sex marriage, established by the 2015 court decision in Obergefell v. Hodges, concerns a handful of photographers, cake designers, webmasters and other creative service providers in a growing conflict with same-sex couples.
Our country was founded to protect the exercise and expression of moral beliefs, including those of religious fanatics. That’s why the Supreme Court allows a radical Kansas church to spread hateful messages against the LGBTQ community.
Much of the public protests against this, but popular sentiment receives no protection in the Constitution. Conversely, the freedom to exercise and express one’s religious beliefs remains the top agenda of the Bill of Rights. The rest of the Constitution and nearly 250 years of jurisprudence lean strongly in favor of protecting individuals, whether they communicate love or hate, against the whims of popular sentiment.
If popular opinion counted in the law, the right to own a gun, own property or protest against cops would be compromised. Freedom requires a content neutral government that protects minority opinions – even those generally considered offensive or scandalous – from overwhelming opposition.
Colorado baker Jack Phillips symbolizes the conflict between a handful of service providers, same-sex couples, and a country that strengthens the rights of LGBTQ people. After a panel of jesters from the state Civil Rights Commission mocked the baker’s religious objection to designing a custom cake for a same-sex marriage, the U.S. Supreme Court humiliated them with a ruling explaining in detail how they abused his First Amendment rights.
Disappointing for both parties, the court declined to answer the overarching question: can service providers refuse contracts for personalized expressions on the basis of religious or moral objections?
With the narrow decision in Masterpiece Cakeshop v. Colorado, other service providers across the country are finding themselves in similar dilemmas. Activists are asking for creative services for same-sex marriages, gender reassignment celebrations, or other occasions that they know will offend the potential entrepreneur. The question is not whether the opinions of a service provider are good or bad. The question is whether they can make a living from it while doing business.
The latest brawl involves Lori Smith, a web designer who has filed a lawsuit to overturn Colorado’s anti-discrimination law. She argues that the state should not force her to contract same-sex couples looking for marriage websites.
A three-judge panel of the Denver 10th Court of Appeals ruled against Smith last week, creating another opportunity for the United States Supreme Court to resolve this issue.
“It’s about protecting LGBTQ people and their families from slammed doors, denial of service and public humiliation in countless places – from fertility clinics to funeral homes and everywhere in between,” Jennifer said. C. Pizer, Senior Counsel for Lambda Legal.
If it were that simple. We have no nationwide conflicts over the rights of all people, including members of the LGBTQ community, to participate in conventional business transactions.
Phillips agrees. He sells anything in the store to same sex couples. Few would blame the Civil Rights Commission if Phillips refused to sell the couple cupcakes. We cannot have a free country where store managers and owners deny day-to-day transactions on the basis of a customer’s sexual orientation. For most 21st century Americans, any discrimination based on unchangeable traits would be unthinkable.
But cars, cupcakes, houses, and embalming liquid are not the same as custom-designed cakes, murals, and websites.
Imagine a world in which no one can discriminate in the market, even if a request for a custom design offends the supplier. In this world, the state would force a cake maker to produce a cake that says “God hates …?” if a hate preacher demands one. From this perspective, the right to discriminate seems more important for the masses.
If a baker cannot discriminate on a moral objection, the baker cannot refuse a morally repugnant message.
Legally, the governments of the United States are neutral on beliefs. The state cannot favor a synagogue over a mosque. A state civil rights authority cannot favor the moral views of Pope Francis over those of David Duke.
One can easily distinguish between selling cookies and designing a personalized cake. Still, other deals – think hair design – blur the lines. The law should not allow a hairdresser to refuse a service based on a person’s identity. Yet Rolling Stone assures us that “far-right extremists have appropriated references to (bowl-cut) hairstyle as a frightening symbol of racism.” Maybe the state shouldn’t force a pacifist barber to give racist haircuts to skinheads. Perhaps the state shouldn’t force a Jewish undertaker to give affectionate praise to Nazi war criminal Michael Karkoc, who died last year in Minnesota. Are we free without the freedom of association, which requires the freedom of dissociation?
A business cannot refuse service to black people. But can an artist refuse to create a Black Lives Matter painting? They are not the same.
For such difficult questions, we have a collection of the world’s foremost jurists at the Supreme Court. The court should take the Smith case, or a similar case, and try to clarify that for a country confused by competing rights, morality, the rule of law, and the pressures of changing public sentiment.
REPRINTED FROM THE COLORADO SPRINGS GAZETTE
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