Ten years ago Jack Phillips, a cakeshop owner in Colorado, refused to bake a cake for the wedding of a same-sex couple on the grounds that a gay marriage violated his religious beliefs. The Supreme Court ruled in his favor. This year, Colorado continues to be a hotspot lobbying on queer and LGBTQ rights.
On Monday, the Supreme Court heard an eerily similar case. The plaintiff, Lorie Smith, is a Christian web designer from Colorado who does not want to create websites for same-sex weddings, despite an anti-discrimination law in Colorado stating otherwise.
The ramifications of the case are undeniably far reaching, and I cannot help but worry of the potential fall of Obergefell v. Hodges five years from now. Precisely, our definition of free speech – and readings of the First Amendment – could serve as the basis of allowing all sorts of anti-discrimination as if the 14th Amendment never existed.
To begin with, it is questionable why this case even made it to the highest court in the nation. For starters, Smith has never created a website or refused service to a same-sex couple. Such a pre-emptive argument can only emphasize how religiously conservative ideology feels threatened by the idea of marriage going beyond a man and a woman. Now that the case is public, I really doubt any same-sex couple will be aching to reach out to Smith for her services anyway. In fact, the entire case hinges on Smith’s fear that “the state of Colorado will take action against her” for discriminating against same-sex couples.
Let me just get a couple things straight: the highest court in our nation is hearing a case which could justify public discrimination against an entire marginalized group based on fear. Smith is also well aware that her actions constitute discrimination, yet continues to believe herself and her religious beliefs above the law anyway.
Nevertheless, in the oral arguments heard on Dec. 4, the Justices poured over hypotheticals, attempting to distinguish between artistic services and other regular commercial businesses. The art of creation falls under the umbrella of free expression, differentiating itself from hotels and restaurants, who aren’t offering a talent to someone else. According to Smith’s lawyer, Kristen K. Waggoner, the line for services highlighting “creative” expression seems atrociously vague. Creativity can be considered a form of free expression, but when it encroaches into anti-discrimination laws, we are forced to figure out whether the First Amendment should be weighed more heavily than the 14th Amendment. Equal protection is just as much part of the Constitution as freedom of expression.
Because Smith’s case rests on no tangible circumstances, the Court is effectively arbitrarily trying to determine what sort of businesses constitute those with creative expressions and those without the demarcation of artistry. By this token, I could probably argue for all businesses to have some degree of creativity. But crucially, conflating an individual opinion with a public service reeks of moral superiority; if every waiter could turn away a rude customer because their belief system is being compromised, we’d probably run out of service workers faster than we already are. After all, if services are offered to the public, they should be held to the same anti-discrimination laws as everyone else – creativity notwithstanding. This isn’t to say that individuals alone do not have the right to free speech, but that businesses who are voluntarily using their talents to serve other people should not be given a free pass.
Today, free speech and freedom of religion are thrown around casually as justification for discrimination. But to what end? If religion is considered part of someone’s identity, it should not be considered superior to another part of identity –—like sexuality, race or anything else. At the end of the day, religion is personal. Organized religion might be publicly recognized, but the way it’s expressed is personal. As such, religious beliefs and their expression should not cross into the lines of the service industry. For instance, if a shop chooses to sell exclusively Christmas decorations, this can be explicitly stated in the store as well as on its website; refusing to serve another person on the basis of identity, however, goes into the realm of discrimination. Gay rights are not a free speech matter.
Simply put, Smith’s case is not a ruling on First Amendment rights. It’s a disregard for someone else’s life choices. And while the Court seems to allow it to be disguised as such, the predictable conservatively leaning ruling will etch yet another division within the political fabric of the U.S. The Equal Protection Clause exists for a reason, and for countless cases in the past, the Court — in the throes of the civil rights movement — decided that religious beliefs cannot trump discrimination. So why are we trying this again now? If religious beliefs, and any other ideological belief for that matter, are to be taken seriously, then so should the rights to all services for all people in the U.S.
On her website, Smith briefly outlines the case and adds a message to her clients saying, “I am very sorry that some people are so intolerant of my beliefs…” I’m not intolerant against her beliefs. I might disagree, but she is allowed to hold them. What amuses me, however, is the irony of asking for tolerance while her case is about her own intolerance.
At some point we must realize how absurd it is that a country touting values of freedom and equality can haphazardly make decisions on someone else’s life choices while trying to uphold their own.
Sophia Ling (24C) is from Carmel, Indiana.
Sophia Ling (she/her) (24C) is from Carmel, Indiana and double majoring in Political Science and Sociology. She wrote for the Current in Carmel. She also loves playing guitar and piano, cooking and swimming. In her free time, she learns new card tricks and practices typing faster.