US Supreme Court endorses a web designer’s refusal to sell services to same-sex couples in a free speech ruling
By Anil Madan
At the end of its 2022-23 term, the Supreme Court of the United States (SCOTUS) issued a series of major decisions. Last week, I wrote about the Harvard/UNC admissions case. Then there was the case on whether the State courts can review the actions of state legislatures regulating how elections including those for federal office are managed. I will get to that in another article. And, of course, there is the case in which the SCOTUS ruled that a website designer can lawfully refuse to offer her services to gay and transgender couples if those services include information about same sex marriages to which she is opposed on religious grounds. She protested that Colorado’s public accommodations law requiring virtually all businesses offering their services to the public must do so on a nondiscriminatory basis, forced her to engage in speech that she did not believe in or endorse, against her will and forced her to produce speech in violation of her sincerely held beliefs.
SCOTUS ruled that a website designer can lawfully refuse to offer her services to gay and transgender couples if those services include information about same sex marriages to which she is opposed on religious grounds. Pic – SHRM
I have been asked by friends around the world to explain how SCOTUS comes up with decisions that leave people in other countries—and presumably sensible people in this country—shaking their heads.
In this wedding website design case, the technical maneuvering that the Court engaged in is easy enough to describe. But I must say at the outset, that the result was probably foreordained either by very excellent lawyering for the web designer or very poor lawyering for the state of Colorado, or a combination of both. The web designer’s lawyer was able to get the State of Colorado’s attorney to stipulate to facts in a way that doomed the case.
More importantly, this case involves a clash between the First and Fourteenth amendments to the Constitution of the United States. In broad terms, the relevant parts of the First Amendment protect freedom of speech and expression (including freedom of the press) and the free exercise of religion. The Fourteenth Amendment’s relevant provision is that no state shall deny to any person within its jurisdiction the equal protection of the laws.
If freedom of speech in America represents the immovable object and the concept of equality, the irresistible force, in this clash, freedom of speech won out, equality lost.
This is, in my view, a tragic decision, one that is myopic and profoundly wrong on so many levels. To me, it brings back echoes of the infamous case Plessy v. Ferguson in which SCOTUS held that states could require whites and blacks to travel in segregated rail carriages and that so long as the carriages were “separate but equal” this did not amount to discrimination.
It took almost a half century for SCOTUS to come to its senses and understand that equality is not a zero-sum game of bean counting, that there are real world consequences to separating the races and an all too glib phrase such as “separate but equal” is an insult to human intelligence.
In 1954, SCOTUS, in a moment of enlightenment, ruled in a case challenging the separation of white and black students, that separate is inherently unequal and required that schools be integrated to have a mixture of races.
Freedom to think and speak – our inalienable rights
Before we get to details of the case, let us pause to consider that, as SCOTUS has recognized, the Free Speech Clause of the First Amendment is designed to protect the freedom to think as you will and to speak as you think. The freedom of speech is an end as well as a means. It is an end because the freedom to think and speak is among our inalienable rights. A means because the freedom of thought and speech is indispensable to the discovery and spread of political truth. If there is any fixed star in our constitutional constellation, it is the principle that the government may not interfere with an uninhibited marketplace of ideas. It is no surprise therefore, that the free speech clause has been interpreted and enforced with rigor by SCOTUS.
Now to the case at hand. Like many States, Colorado has a law forbidding businesses from engaging in discrimination when they sell goods and services to the public. Laws along these lines have done much to secure the civil rights of all Americans.
But note that here we are speaking of enforcing a law enacted pursuant to the Fourteenth Amendment and not the amendment itself. This may be a distinction without a difference to sensible people (and I count myself as one) but perhaps it allowed SCOTUS to give freedom of speech primacy over equal protection, i.e., exalted an amendment over a mere law passed pursuant to a different amendment.
That, of course, strikes me as incongruous. After all, it is the Declaration of Independence that first formally mentioned “unalienable rights” beginning with the recognition of the self-evident truth that all men are created equal. One would suppose, therefore, that the concept of equality would trump all else. Read More… Become a Subscriber
Mauritius Times ePaper Friday 14 July 2023
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