Cakes Are Not Words and Silence Is Not Speech

Discrimination has a bad reputation, but it’s really only the irrational kind that deserves a negative vibe: it’s certainly a kind of discrimination when the government declines to issue driver’s licenses to blind people, but that restriction doesn’t rankle at all, or at least it doesn’t rankle me personally, because I can’t imagine that even blind people themselves think they should be allowed to drive cars. (Whether blind people should be allowed to “drive” driverless cars is a different question, one it will be very interesting to see resolved when such vehicles actually exist.) Nor does anyone think it is wrong to discriminate against children by not allowing them to vote or to purchase alcoholic drinks or cigarettes. All of these restrictions are discriminatory in that they deny a right to some specific segment of society that is not denied to the rest of everybody. But none is controversial because they are all rooted in reasonableness and sensibleness.

What is widely and reasonably understood to be repugnant in a democratic society rooted in the concept of equal rights for all is the kind of discrimination that has no logical basis, the kind that singles out some specific recognizable group within society and denies the members of that group some right merely because of their membership in that group and not for any obvious or even subtle but arguable reason. And only complicating the matter is the fact that society is not a static entity but a dynamic ones that morphs forward ethically in fits and starts with respect to its understanding of itself and the world it inhabits. As such, the ancient law forbidding women from giving testimony in a beit-din, a law grounded in the opinion that women are possessed of flighty intellects and could therefore not be trusted to resist the malign influence of outsiders eager to pervert some woman’s testimony for their own advantage, may well have sounded rational in ancient times (although I doubt it), but sounds somewhere between ridiculous and preposterous today. I’ve written many times in this space about the unsettling effect reading books of pro-slavery sermons preached by ministers and rabbis in these United States before the Civil War has on me. To wave them away as nonsense is really to miss the point: the preachers involved seem truly to have believed that Black people were meant to serve their Caucasian masters and that slavery was therefore not a form of irrational discrimination but simply an institution rooted in scientific reality. Obviously, no normal person thinks that today! And so have we as a society learned to condemn racial discrimination as irrational, therefore morally wrong. All discriminatory laws rooted in false, scientifically unverifiable assumptions about the universe are almost by definition unethical and unjust. Nor does this feel like a controversial observation—indeed, it’s hard to imagine anyone taking issue with it at all.

And now we come to this week’s case before the Supreme Court, 303 Creative v. Elenis, in which “303 Creative” is a web-site design business owned by a Colorado woman named Lori Smith and “Elenis” is Aubrey L. Elenis of the Civil Rights Division of the Colorado Department of Regulatory Agencies. Smith is interested in seeking business opportunities designing websites for couples planning to be married. (This is a thing now. Not all couples do it, but lots do.) She became aware of the fact, however, that anti-discrimination laws in Colorado would require her to agree to create such websites for same-sex couples as well as heterosexual ones and so, because she claimed her Christian faith required her to turn away gay customers, she sued the State of Colorado. She lost in court. But the matter was hardly done with.

This mirrors a previous Colorado lawsuit, Masterpiece Cakeshop v. Colorado Civil Rights Commission, which dates back to 2018 and in which the issue in need of adjudication was almost simple. A baker named Jack Phillips refused to create a wedding cake for a gay couple, David Mullins and Charlie Craig. The couple filed a complaint with the Colorado Civil Rights Commission on the grounds that the baker was acting in violation of the Colorado Anti-Discrimination Act, which specifically outlaws discrimination based on sexual orientation. The Commission sided with the couple. The baker appealed. In August of 2015, the Colorado Court of Appeals ruled against the baker and affirmed the couple’s right to be served by any business open to the public. The Colorado Supreme Court declined to revisit the matter, but the Supreme Court of the United States did agree to rehear the case and then, in 2018, reversed the lower court’s decision and granted the baker the right to refuse service based on religious grounds. But the Court’s decision was based on narrow legal argumentation relating to the fact that the Civil Rights Commission itself was not religion-neutral in the way it applied the law to in-state businesses. At the same time, the Supremes specifically declined to rule on the issue at the heart of the matter: whether requiring someone possessed of sincere religious beliefs to act contrary to those beliefs is tantamount to denying that person the freedom of religion guaranteed by the First Amendment, or if the Equal Protection Clause of the Fourteenth Amendment requires that all citizens be treated equally and fairly even if doing so requires someone to act contrary to the tenets of his or her faith.

In theory, this is a civil rights issue, not specifically a gay one. And yet why do I think that, in a million billion years, the Supreme Court would not rule in favor of someone whose sincere religious beliefs required him or her to think of Black people as inferior creatures destined to serve white people? Or whose religious beliefs forbade hiring any women in positions that would make them the superiors of male employees? These issues are ridiculous even to raise in today’s America! And yet once we are seriously discussing if one’s religious beliefs can override other people’s innate civil rights, why exactly would prevent someone from justifying prejudice with reference to them? It’s not like you couldn’t make a serious case that biblical religion heartily endorses slavery and condemns the descendants of Ham to be the slaves of the descendants of Ham’s brothers.

And now we come to this week’s case, 303 Creative LLC v. Elenis. The twist here is that the plaintiff is arguing not that requiring her to serve same-sex couples violates her religious freedom, but that it violates her freedom of speech. A website is a form of linguistic expression, so framing the issue with respect to the First Amendment doesn’t sound that far-fetched, at least not at first. And yet there is something fishy about the argument: in the scenario in which a gay couple approaches a web designer and asks that person to create a website for them, it is the couple, not the site designer, that speaks through the website. It’s the couple’s language, their text, their message, their photos on display. The designer, like the printer of a book, says nothing at all but merely facilitates other people’s free speech. To me, personally, the whole argument is wrongheaded: if the same woman declined to serve Jewish customers because creating a website that features solely their content would somehow be requiring her to speak in public as a Jewish person (and thus not as a Christian one), no one would take her argument at all seriously. But since the discriminated-against party here is a gay couple, there are apparently people willing to consider that kind of attenuated third-party speech—in which the alleged speaker remains unidentified and says nothing at all—to be real enough to warrant serious consideration under the laws that govern freedom of speech. Can silence be speech? Maybe in a George Orwell novel!

I write as an interested party here—and specifically not because I am the father and father-in-law of two gay men. Okay, maybe that too. But my primary interest here is the interest of a citizen and has to do with the inherent ridiculousness of the notions that an unsigned cake served without reference to its point of origin can be taken as an expression of religious sentiment or that the construction of a website in which the designer says nothing at all and is left fully unidentified can be seen as a kind of protected speech. Both arguments are, at least to me, smokescreens designed to justify petty discrimination against a recognizable group within society—the very thing the Bill of Rights specifically exists to prohibit.

The Supreme Court should make it clear that website designers, like all businesspeople, are prohibited by law from discriminating against specific citizens merely because they don’t wish to serve them…and that it is not relevant if they perceive the origin of their prejudice to be rooted in religious faith or bogus science. And, after all, it’s not like people who feel it would be a betrayal of their own religious beliefs to serve people whom they are required by law not to discriminate against don’t have a perfectly good way out: acting on principle and choosing to pay the real price of embracing values wholly out of sync with the law, they can choose to go out of business and be done with it.