The Supreme Court last Monday heard arguments over whether business owners can refuse service to LGBT couples based on their religious objections to the would-be customers’ marriage. If you’re getting déjà vu, it might be because that circumstance played already, exactly five years before to the day, when the court heard arguments in a case involving gay couple David Mullins and Charlie Craig being turned away from the Colorado’s Masterpiece Cakeshop after trying to order a wedding cake.
The justices split 7-2 on the narrow ruling that a Colorado law had violated cakemaker Jack Phillips’ rights, but did not address the more complex legal question of whether a business has a First Amendment right to refuse to create specific products for clients whose conduct they find morally or religiously objectionable. That lack of clarity has now come back to haunt us in this instant case, brought by graphic designer Lorie Smith, also of Colorado, who wants to refuse LGBT clients’ requests for wedding websites.
It comes at a different and more dangerous time. Armed and fatigue-clad demonstrators including the Proud Boys shut down another drag event this weekend, in Columbus. A few months ago, more than 30 members of the militant Patriot Front were arrested after police found evidence of a conspiracy to disrupt a pride event in Idaho.
While Smith and her lawyers contend that a finding in their favor is a simple affirmation of her right not to be compelled to produce speech in this specific circumstance, the repercussions of the Supreme Court sanctioning businesses’ desire to exclude customers could be much broader. As some high-profile commentators turn to open antisemitism, what would stop a photographer from refusing to work with Jews, or a chef refusing to serve Black people in his restaurant?
We shouldn’t want the government to be able to force people to say certain things, but in these cases the merchants’ objections aren’t really about adopting clients’ positions so much as shunning them for their identities. That should rightfully be a thing of the past.
