The Associated Press, and progressives everywhere, described Friday’s big Supreme Court ruling in 303 Creative LLC v. Elenis as “a defeat for gay rights.”
As a gay man, I don’t see it that way at all.
The case concerned a Colorado-based designer, Lorie Smith, who wanted to expand her business to offer custom wedding website design services.
However, because of her personal religious beliefs, Smith was unwilling to create websites that celebrate same-sex weddings, given the inherent conflict between expressing those ideas and her own beliefs.
Smith went to court seeking protection from being forced to violate her religious beliefs.
In its 6-3 decision, the Supreme Court ruled in Smith’s favor, finding that she has a First Amendment right against government-compelled speech.
And the way I see it, this is exactly the outcome that all Americans, gay or straight, should want.
I don’t personally agree with Smith’s values or beliefs, but nobody has the right to force others to adopt their ideas using the power of government.
And I sure wouldn’t want that kind of imposition placed on me.
Under the logic the court’s liberal justices embrace in their dissent, a gay business owner could be forced to design a website promoting anti-gay bible verses.
After all, religion is a protected characteristic under civil rights law, and an individual could just as easily claim that they’re being “discriminated” against because of their beliefs in that scenario.
Justice Neil Gorsuch explicitly acknowledged this scenario in the Supreme Court’s opinion, writing that under the dissent’s logic, “[The government] could require ‘an unwilling Muslim movie director to make a film with a Zionist message,’ or ‘an atheist muralist to accept a commission celebrating Evangelical zeal,’ so long as they would make films or murals for other members of the public with different messages. Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage.”
Gorsuch concludes, “The First Amendment tolerates none of that.”
I completely agree.
You can’t have it both ways. If LGBT people don’t want to be forced to violate our beliefs, we can’t support forcing our religious neighbors to do so.
And I, for one, would rather live in a world where all Americans have freedom of conscience than one where we’re constantly using the government to force each other into conformity.
But none of this means an end to all anti-discrimination protections under the law.
Some critics of the Supreme Court’s decision are falsely claiming that it completely undermines legal protections for LGBT Americans, creating a blanket “right to discriminate.”
Thankfully, this isn’t true.
The court’s opinion carefully clarifies that it’s ruling only applies to “expressive activity,” a narrow category of commerce that involves speech and ideas (like creating a website).
While future court cases will be needed to draw the exact lines here, most goods and services are not expressive, meaning that in the many states where LGBT identity is a protected characteristic, they will still be bound by anti-discrimination law.
Nothing in this decision suggests that a coffee shop has a First Amendment right to deny gay customers iced coffee, or that an apartment complex can refuse to rent to individuals who identify as transgender.
It’s only when the service involves expressing a message that all Americans, regardless of identity, will have the First Amendment right to refuse.
Ultimately, this case is about tolerance.
No, not the kind of “tolerance” bandied about by today’s progressives, who often demand that conservatives not just tolerate but fully embrace their values.
But the kind of true tolerance that, when embodied in our laws, allows Americans like Lorie Smith and myself to live side-by-side in harmony despite our radically different beliefs.
Brad Polumbo (@Brad_Polumbo) is an independent journalist and co-founder of BASEDPolitics.
