Judges Say Web Design Is ‘Pure Speech’ and That the State Can Compel It Anyway(reason.com)
reason.com
Judges Say Web Design Is ‘Pure Speech’ and That the State Can Compel It Anyway
https://reason.com/2021/07/27/judges-say-web-design-is-pure-speech-and-that-the-state-can-compel-it-anyway/
26 comments
Am I right in the assumption that if there were a LGB only wedding website designer they could be compelled, under this ruling, to make websites for straight weddings?
Or would that go against the "protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace."?
Or would that go against the "protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace."?
I think the Reason piece gives the incorrect context for that quote.
After confirming the state's "unique interest in remedying its own discrimination against LGBT", the majority continue:
> As compelling as Colorado’s interest in protecting the dignitary rights of LGBT people may be, Colorado may not enforce that interest by limiting offensive speech. Indeed, the First Amendment protects a wide range of arguably greater offenses to the dignitary interests of LGBT people. ...
> The Accommodation Clause is, however, narrowly tailored to Colorado’s interest in ensuring “equal access to publicly available goods and services.” ...
My interpretation is that, yes, an website designer offering comparable LGBT-only services would be found in violation of CADA as that would not "equal access to publicly available goods and services" for people, based on their sexual orientation.
After confirming the state's "unique interest in remedying its own discrimination against LGBT", the majority continue:
> As compelling as Colorado’s interest in protecting the dignitary rights of LGBT people may be, Colorado may not enforce that interest by limiting offensive speech. Indeed, the First Amendment protects a wide range of arguably greater offenses to the dignitary interests of LGBT people. ...
> The Accommodation Clause is, however, narrowly tailored to Colorado’s interest in ensuring “equal access to publicly available goods and services.” ...
My interpretation is that, yes, an website designer offering comparable LGBT-only services would be found in violation of CADA as that would not "equal access to publicly available goods and services" for people, based on their sexual orientation.
“I don’t have any idea how to do right by this work, so I’m returning your commission deposit” is not discriminatory.
“I don’t accept commissions from protected classes” is discriminatory.
The artist preemptively declared the latter, and was promptly found to be discriminating under existing law.
If you’re asked to bake a cake and you don’t think you can do their needs justice, saying so is not discriminatory, and is not itself sufficient evidence of a pattern that could be used against you successfully.
If you refuse to bake cakes for every non-hetero wedding in a region, those you refuse will probably figure this out and will probably succeed at a discrimination case against you.
(I am not your lawyer, comments on Internet forums are not legal advice.)
“I don’t accept commissions from protected classes” is discriminatory.
The artist preemptively declared the latter, and was promptly found to be discriminating under existing law.
If you’re asked to bake a cake and you don’t think you can do their needs justice, saying so is not discriminatory, and is not itself sufficient evidence of a pattern that could be used against you successfully.
If you refuse to bake cakes for every non-hetero wedding in a region, those you refuse will probably figure this out and will probably succeed at a discrimination case against you.
(I am not your lawyer, comments on Internet forums are not legal advice.)
I agree. The issue is because 330 Creative LLC wanted to include the following in marketing materials:
> These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage –the very story He is calling me to promote.
and follow that restriction, but "Appellants have not yet offered wedding-related services, or published the Proposed Statement, because Appellants are unwilling to violate CADA."
(quoting from the linked-to decision at https://reason.com/wp-content/uploads/2021/07/303Creative.pd... ).
Indeed, the appellates state they are:
> willing to “create custom graphics and websites for gay, lesbian, or bisexual clients ... so long as the custom graphics and websites do not violate [Appellants’] religious beliefs, as is true for all customers.” ... Thus, Appellants are not injured because CADA might “compel” them to create a website announcing a birthday party for a gay man; that is something Appellants would do willingly. Nor are Appellants injured because CADA might “compel” them to create a website announcing “God is Dead”; Colorado concedes CADA would not apply if Appellants would not produce such a website for any customers.
So the lawsuit is really targeting just one special circumstance - gay marriage - as a sort of wedge issue.
https://freedomforallamericans.org/303-creative-v-elenis/ comments "The designer is represented by the Alliance Defending Freedom, an organization that works aggressively to restrict and roll back non-discrimination protections and basic equality for LGBTQ Americans."
> These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage –the very story He is calling me to promote.
and follow that restriction, but "Appellants have not yet offered wedding-related services, or published the Proposed Statement, because Appellants are unwilling to violate CADA."
(quoting from the linked-to decision at https://reason.com/wp-content/uploads/2021/07/303Creative.pd... ).
Indeed, the appellates state they are:
> willing to “create custom graphics and websites for gay, lesbian, or bisexual clients ... so long as the custom graphics and websites do not violate [Appellants’] religious beliefs, as is true for all customers.” ... Thus, Appellants are not injured because CADA might “compel” them to create a website announcing a birthday party for a gay man; that is something Appellants would do willingly. Nor are Appellants injured because CADA might “compel” them to create a website announcing “God is Dead”; Colorado concedes CADA would not apply if Appellants would not produce such a website for any customers.
So the lawsuit is really targeting just one special circumstance - gay marriage - as a sort of wedge issue.
https://freedomforallamericans.org/303-creative-v-elenis/ comments "The designer is represented by the Alliance Defending Freedom, an organization that works aggressively to restrict and roll back non-discrimination protections and basic equality for LGBTQ Americans."
I have to assume there's a decent chance that the designer started this suit to gain some attention and attract homophobic customers, and contribute to their christian marriage web dev companies brand. Could be wrong, they could just really want a fight, but with how common and easy it is to grift bigots these days it's always my first guess
An “art” exception to discrimination begets the same problem as the amorphous concept of “religion” that groups are constantly trying to use as an exception to permit discrimination.
Should a bigoted deli owner be able to refuse service to minority customers because they’re a “sandwich artist” and forcing them to provide a service would be “compelled speech”? Of course not.
But what’s “art”? And if we permit discrimination in the name of “art” where would we draw the line between art and a fungible service? Is the contractor who designed my new kitchen an artist? Can his company refuse to provide service to me for whatever reason he likes? What about the guy who painted and detailed my car? My dog groomer? The woman who does my nails? My landscaper? I’ve seen some beautiful wire work done by electricians, is that art?
Who’s to say what “art” is? And even if we could come up with a clean definition why is it a problem if we “compel” them to provide their services? We compel speech all the time.
License plates are compelled speech. 10-Ks are compelled speech. Privacy notices are compelled speech. Drug warning labels are compelled speech. Heck, in some states if you test positive for HIV you have a legal obligation to notify past sexual partners. That’s some pretty invasive compelled speech! But in an equal society your rights and beliefs, no matter how sincerely held, don’t give you carte blanche to ignore the rights of others. And the “compelled speech” argument is just a bogey man that can make any regulation sound sinister.
Should a bigoted deli owner be able to refuse service to minority customers because they’re a “sandwich artist” and forcing them to provide a service would be “compelled speech”? Of course not.
But what’s “art”? And if we permit discrimination in the name of “art” where would we draw the line between art and a fungible service? Is the contractor who designed my new kitchen an artist? Can his company refuse to provide service to me for whatever reason he likes? What about the guy who painted and detailed my car? My dog groomer? The woman who does my nails? My landscaper? I’ve seen some beautiful wire work done by electricians, is that art?
Who’s to say what “art” is? And even if we could come up with a clean definition why is it a problem if we “compel” them to provide their services? We compel speech all the time.
License plates are compelled speech. 10-Ks are compelled speech. Privacy notices are compelled speech. Drug warning labels are compelled speech. Heck, in some states if you test positive for HIV you have a legal obligation to notify past sexual partners. That’s some pretty invasive compelled speech! But in an equal society your rights and beliefs, no matter how sincerely held, don’t give you carte blanche to ignore the rights of others. And the “compelled speech” argument is just a bogey man that can make any regulation sound sinister.
I want to be clear that I still find it deeply offensive that someone would discriminate against me for loving all kinds of people, not just the people that fit their narrow religious definition of marriage. That what they're doing is just awful is not a question.
> But what’s “art”?
A dictionary definition:
> the expression or application of human creative skill and imagination, typically in a visual form such as painting or sculpture, producing works to be appreciated primarily for their beauty or emotional power.
Staying focused on the "traditional" definition of art for a moment, I'd ask a few questions:
- Should an artist be compelled to create artwork depicting religious scenes? Imagine a pastor asks an artist for a graphic recreation of Jesus' crucifixion - should they be compelled to create it?
- What about a KKK leader asking for a portrait?
- Or what if the "Q guy" who was all over the Jan 6th coverage commissions a painting glamorizing his involvement in the insurrection?
I strongly believe that an artist should be free to turn all of these down. I'm not personally capable of producing art (at least not the kind that anyone would want to purchase), but I'd be traumatized if forced to create certain religious depictions based on my own history (I grew up in a cult-like religion and still suffer from PTSD in my 30s from the experience).
I fully recognize that this topic is rife with complexity and there are slippery slopes everywhere. But at the same time, there is a clear difference between selling goods and creating/selling art, at least when focused on a "traditional" definition of art.
> But what’s “art”?
A dictionary definition:
> the expression or application of human creative skill and imagination, typically in a visual form such as painting or sculpture, producing works to be appreciated primarily for their beauty or emotional power.
Staying focused on the "traditional" definition of art for a moment, I'd ask a few questions:
- Should an artist be compelled to create artwork depicting religious scenes? Imagine a pastor asks an artist for a graphic recreation of Jesus' crucifixion - should they be compelled to create it?
- What about a KKK leader asking for a portrait?
- Or what if the "Q guy" who was all over the Jan 6th coverage commissions a painting glamorizing his involvement in the insurrection?
I strongly believe that an artist should be free to turn all of these down. I'm not personally capable of producing art (at least not the kind that anyone would want to purchase), but I'd be traumatized if forced to create certain religious depictions based on my own history (I grew up in a cult-like religion and still suffer from PTSD in my 30s from the experience).
I fully recognize that this topic is rife with complexity and there are slippery slopes everywhere. But at the same time, there is a clear difference between selling goods and creating/selling art, at least when focused on a "traditional" definition of art.
> Should an artist be compelled to create artwork depicting religious scenes? Imagine a pastor asks an artist for a graphic recreation of Jesus' crucifixion - should they be compelled to create it?
This is, I think, the better comparison that should be drawn, not so much your other points. The KKK isn't a protected category, but religion is.
An argument that someone might be compelled to make a website for a hate group is a theoretical argument about what could happen in the future. Regardless of how likely it is to happen or how reasonable the argument might be (and I do think it has some merit as an argument), it's still currently the case that a hate group doesn't fall under the same protected status behind anti-discrimination laws.
However, religion does. It's not theoretical, it's a protected category today. Want to preface that I'm not a lawyer, but from what I understand about current anti-discrimination laws, a ruling that speech for protected categories could be compelled would imply that a secular website designer could be compelled today to make a website for a religious wedding featuring religious iconography or messaging that they found offensive or traumatic. I don't know that for sure though, I'd want a 1st Amendment lawyer to chime in one way or another.
Regardless, I kind of suspect this would get overturned anyway if put to the test. I don't have the qualifications to argue confidently about it, but I suspect that the current Supreme Court would not agree with this ruling.
This is, I think, the better comparison that should be drawn, not so much your other points. The KKK isn't a protected category, but religion is.
An argument that someone might be compelled to make a website for a hate group is a theoretical argument about what could happen in the future. Regardless of how likely it is to happen or how reasonable the argument might be (and I do think it has some merit as an argument), it's still currently the case that a hate group doesn't fall under the same protected status behind anti-discrimination laws.
However, religion does. It's not theoretical, it's a protected category today. Want to preface that I'm not a lawyer, but from what I understand about current anti-discrimination laws, a ruling that speech for protected categories could be compelled would imply that a secular website designer could be compelled today to make a website for a religious wedding featuring religious iconography or messaging that they found offensive or traumatic. I don't know that for sure though, I'd want a 1st Amendment lawyer to chime in one way or another.
Regardless, I kind of suspect this would get overturned anyway if put to the test. I don't have the qualifications to argue confidently about it, but I suspect that the current Supreme Court would not agree with this ruling.
> This is, I think, the better comparison that should be drawn
This is a good callout. I threw the other examples in mostly because I found them interesting to think about, but I think you're absolutely right that only one of the three can be directly compared.
Thanks for bringing this up.
This is a good callout. I threw the other examples in mostly because I found them interesting to think about, but I think you're absolutely right that only one of the three can be directly compared.
Thanks for bringing this up.
While I do think the ruling is somewhat weird and contradictory like OP pointed out this business was going out of their way to make this an issue. Any business or individual can refuse work, you just can't do it for strictly discriminatory reasons but no one will know the reasons unless you tell them. If you as an artist/creator/business owner feels that way for whatever reason just don't do the job. Just tell the customer you don't have time or something. How hard is that?
I think protecting groups from discrimination is less important than guaranteeing individual freedoms of speech and assembly.
> The fact that "LGBT consumers may be able to obtain wedding-website design services from other businesses" is irrelevant. "The product at issue is not merely 'custom-made wedding websites,' but rather 'custom-made wedding websites of the same quality and nature as those made by Appellants.' In that market, only Appellants exist."
What? This argument makes no sense. By this logic, every service ever can be compelled to do anything, because by definition they are the only one creating something of that quality and nature.
What? This argument makes no sense. By this logic, every service ever can be compelled to do anything, because by definition they are the only one creating something of that quality and nature.
> By this logic, every service ever can be compelled to do anything, because by definition they are the only one creating something of that quality and nature.
Only in the context of civil rights discrimination, which is very established for publicly traded companies, but I'm not so sure about smaller business.
I had neighbors who were unable to buy houses through a real estate agent in the 1970s because they were black, I am not sure what was and wasn't illegal in the discrimination given the weird rules for private people, clubs, etc, but if I remember correctly a realtor from a large concern (Coldwell Banker?) ultimately gave them service.
Only in the context of civil rights discrimination, which is very established for publicly traded companies, but I'm not so sure about smaller business.
I had neighbors who were unable to buy houses through a real estate agent in the 1970s because they were black, I am not sure what was and wasn't illegal in the discrimination given the weird rules for private people, clubs, etc, but if I remember correctly a realtor from a large concern (Coldwell Banker?) ultimately gave them service.
> context of civil rights discrimination
Why is someone not wanting to build a website a civil rights violation? What civil right is being violated?
Why is someone not wanting to build a website a civil rights violation? What civil right is being violated?
If you don't make any promises you can generally do whatever you want with whatever discretion as a generic website maker. They asked if they can specifically make wedding a service while having a religious belief that causes them to discriminate on basis of sexual orientation. They can't and we wouldn't be able to compel anyone with their beliefs to be in that business, but we don't have to adjust that business for people who hold their religious beliefs.
That's the key error in the ruling. It's sort of correct in the narrows but it ignores the idea that the marketplace is a set overlapping and partially nested industries of increasing specificity, not a discrete collection of separate markets, which would force the reductio ad absurdum that majority reached but accepted as a valid conclusion.
Interesting. I can't say whether the judges' decision is a good legal theory, but it seems like, in practice, trying to enforce equal access to buying creative goods is a total non-starter.
If I sell lots of identical goods, it's totally clear what the law is entitling prospective customers to buy. But if I make and sell creative works, I'm naturally making something different for each client. How could anyone decide whether the work I do on one project is "equivalent" to the work done on another, or if a completed workpiece is up to my "usual standard", or even whether I put in "the same amount of effort" for this client as I did for a different client, when by definition each project is one-of-a-kind?
If I sell lots of identical goods, it's totally clear what the law is entitling prospective customers to buy. But if I make and sell creative works, I'm naturally making something different for each client. How could anyone decide whether the work I do on one project is "equivalent" to the work done on another, or if a completed workpiece is up to my "usual standard", or even whether I put in "the same amount of effort" for this client as I did for a different client, when by definition each project is one-of-a-kind?
Why is that different than any other service? I knew a lot of people who behaved immaturely in their first service job with someone they thought was a good victim, and when they were called out their boss had to work to make it right.
I don't really get the argument in a business context for this level of "religious tolerance". If you are building to suit, you are at best an artisan and we compel artisans to do all sorts of things since the first building fell down.
If you are Amish unemployment shouldn't compel you to work as an electrician and that might leave you shoveling poo. If your convictions are real, where is the problem?
I don't really get the argument in a business context for this level of "religious tolerance". If you are building to suit, you are at best an artisan and we compel artisans to do all sorts of things since the first building fell down.
If you are Amish unemployment shouldn't compel you to work as an electrician and that might leave you shoveling poo. If your convictions are real, where is the problem?
Compelling someone to do a thing will guarantee a crappy outcome, so while I get that it's not good that someone wouldn't make the cake, forcing them to make it gives them a million opportunities to make a shitty cake. Who would want that on their wedding day?
I would be disappointed that a company wouldn't service me because I was gay, but I would hate it even more if they were forced to provide (shitty) service to me.
I would be disappointed that a company wouldn't service me because I was gay, but I would hate it even more if they were forced to provide (shitty) service to me.
It's not about getting a cake or a website, it's about using the legal system to establish a precedent that it will be illegal to refuse service based on one's personal beliefs about the LGBTQIA+ community. The two services in question are just a means to an end.
I get that it's not about cakes and websites. But the legal system can't force someone to do their best work for you. It can't be illegal to not do your best.
The Civil Rights Act's prohibition of private sector discrimination in "public accommodations" was always a mistake. If there is indeed such a thing as a service that is categorically a "public accommodation" even if a wholly private entity is providing it, then it should be provided directly by the state, or the state should provide some subsidy to select private enterprises in exchange for them entering an irrevocable covenant where they are bound to follow guidelines that advance the public interest.
The same argument could be used to forbid social media censorship. The objection there is that forcing social media companies to publish something they don't want to publish is compelled speech, but if the state is allowed to compel speech, then that objection becomes irrelevant.
chadlavi(1)
With that said, there’s something about this ruling that feels very sinister. The idea that an artist might be compelled to create art that they fundamentally disagree with is some very dystopian stuff.
I’m a member of the LGBTQ+ community, and very practically speaking, if I want to commission art, I want to pay for something that the artist will pour their passion into.
It would disturb me if they were forced to create artwork for me under duress, even if I obviously disagree with the reasons they’d prefer not to.
Edit: Another aspect I hadn't considered - now imagine this ruling is upheld, and imagine artists don't have an opportunity to say "no". As a customer, I now might not even know where the artist stands, and honestly I'd like the option not to give such artists my business. It also raises questions about whether the finished product could ever be of the desired quality.