BY ANN ROSTOW
Today, the Supreme Court produced the most anti-gay opinion since Bowers v Hardwick in 1986. Written by Justice Gorsuch, the 6-3 decision eviscerates Colorado’s ban on anti-gay discrimination in public accommodation, ruling that web designer Lorie Smith’s company, 303 Creative, can start offering wedding websites to straight couples only based on her right to Free Speech. There seems to be nothing in the Court’s logic to prevent Smith, or someone like her, from let’s say, refusing to provide a wedding service to interracial couples.
In his strained rationale, Gorsuch insists that the state of Colorado is at fault for forcing unwanted speech down the throat of an innocent artist, who profoundly believes that marriage is a union between a man and a woman. But as Justice Sotomayor notes for her two colleagues on the left, Colorado’s law restricts actions, not speech. Even if you accept the notion that Smith is an “artist,” she is required as a business owner who is open to the public, to offer her services to one and all. If she disapproves of same-sex marriage, she can even make that known, for example by adding a Biblical quote to all her web pages. What she can’t do is preemptively bar a protected group of customers from accessing a particular service.
This was not technically a case about religious freedom, but of course, Smith is a devout Christian. Like others of her ilk, she claims that she’s happy to serve gay customers, but draws the line at weddings, because she disapproves of same-sex marriage. But the notion that her enterprise involves artistic speech is one that can be made by almost any wedding vendor; the cake baker, the planner, the florist, the decorator, everyone but the limo driver can claim some kind of artistry—and a Christian limo driver can probably come up with some creative element as well. As mentioned before, under Gorsuch’s reasoning, all of these people could refuse to serve, not just us, but interracial couples as well based on their right to Free Speech.
As for the common excuse that other companies provide websites for gay couples, we’ve heard that before from the various bakers and candlestick makers. But as Sotomayor noted, a long line of High Court cases involving race and sex bias in public accommodation has flatly rejected the notion that other options somehow excuse a company for barring women or Blacks.
Applying the Constitution is supposed to be a balancing act. You can’t impose your constitutional will while undermining the constitutional rights of another citizen. But again and again, this Court places the constitutional rights of Christian actors above those of secular Americans, gays and lesbians, atheists, and whomever else is left on the sidelines of justice. This time, they’re using the right to Free Speech, next time it will be some other constitutional mandate. It’s a disgrace.
