The great Masterpiece pastry shop 2015-2018 debates sometimes sound like the chorus of “Anything You Can Do (I Can Do Better)” with folks on the baker’s side insisting that making and decorating a custom wedding cake is an expressive activity, and therefore that Behavior under the First Amendment, and the people on the complainant’s side insist that it is a purely commercial activity and therefore the owners cannot choose which jobs to take based on their moral convictions (“yes it is”, “no it is not”, “yes it is”, “no it is not”). But yesterday the US 10th District Court of Appeals threw that criterion out the window in a similar case and ruled that the speech itself can be enforced by the state to prevent discrimination against gays and lesbians.
In 303 Creative LLC v. Elenis, a divided jury of three determined that designing a custom wedding website is “pure speech”. Under Colorado’s Anti-Discrimination Act, the court found: “Complainants are forced to create websites – and thus speeches – that they would otherwise refuse.” This seems to indicate a win for the web designers who are reluctant to use their creative skills to “celebrate and promote the couple’s wedding and unique love story”. However, according to Judge Mary Beck Briscoe and Judge Michael Murphy, this fact is less important than the “overriding interest” of the state of Colorado “to protect both the dignity of members of marginalized groups and their material interests in accessing the commercial market. ”
The wildest part of the decision is that it is said that a conscientious exemption for a web design firm “would necessarily relegate LGBT consumers to an inferior market because the unique Services are by definition not available elsewhere. “The fact that” LGBT consumers may be able to obtain wedding website design services from other companies “is irrelevant.” The product in question is not just ‘bespoke wedding websites’, but rather “Bespoke wedding websites of the same quality and type as the complainants”. Only complainants exist in this market. “
As Ed Whelan pointed out at National review“It is difficult to imagine a judgment more hostile to freedom of expression”, as by this standard every commercial artist can be classified as a monopoly (by definition no one else can compete in his or her market) according to the content of the regulation. It is as if the same expressive qualities that sparked the First Amendment are also used to discuss the First Amendment.
This decision is shocking and it is worth objecting to. It seems just like that to me Kind of thing the US Supreme Court could unanimously overturn. (UCLA law professor Eugene Volokh, the contradicted me and many other libertarians above Masterpiece pastry shop on the grounds that cake decoration does not count as speech, Notes in a blog post that he filed an amicus briefing on the web designer side in this case.) But even if the 10th district ruling doesn’t stand – and I very much hope it doesn’t – there is reason to be concerned Cases like this can add to political radicalization and animus.
In one January poll Of those who supported then-President Donald Trump in 2020, 89 percent said “Christianity is under attack in America today”. When asked how important it is for a politician to “support laws protecting religious freedom”, seven out of ten gave five out of five; no other attribute has been rated so highly by so many.
This is strong evidence that support for Trump was a response to something in particular – namely, a feeling that “People like her“are exposed to unfair attacks that require an extreme reaction on your part. The Supreme Court ruling in favor of the bakers in Masterpiece should have been a justification for their rights, but the situation around 303 Creative is, if anything, even bolder.
The 45th President’s critics rightly accused him of fueling the division “us against them”. The efforts of the left to evict believers from the public place are also morally deficient, and insofar as they are right in one more authoritarian direction, they only make our toxic policies worse.
* FIX: Unlike Masterpiece Cakeshop, which has been repeatedly targeted under the Colorado Anti-Discrimination Act, 303 Creative is preemptively questioning the law’s constitutionality. The court found the company “has a credible fear that Colorado will prevail”. [the state’s Anti-Discrimination Act] against them.”