The Supreme Court Is About to Ask the Wrong Question About the First Amendment

NYT OPINION: The Supreme Court Is About to Ask the Wrong Question About the First Amendment
By David Cole
Section: Opinion
Source: New York Times
Published Date: December 5, 2022 at 02:00AM

If you want to offer to design wedding websites for the public, you have to do it for same-sex couples, too.

Can an artist be compelled to create a website for an event she does not condone? That’s the question the Supreme Court has said it will take up on Monday, when it hears oral arguments in 303 Creative v. Elenis. The answer would seem to be obviously “no.”

But that’s the wrong question. The right question is whether someone who chooses to open a business to the public should have the right to turn away gay customers simply because the service she would provide them is “expressive” or “artistic.” Should an architecture firm that believes Black families don’t deserve fancy homes be permitted to turn away Black clients because its work is “expressive”? Can a florist shop whose owner objects to Christianity refuse to serve Christians? The answer to these questions would seem to be, just as obviously, “no.”

So why is the first question the wrong one in this dispute? The case before the court was brought by 303 Creative, a business that says it wants to offer wedding website design services to the public but doesn’t want to serve gay couples. Under Colorado’s public accommodations law, businesses that choose to serve the public at large cannot turn people away because of their race, sex, religion, sexual orientation or other protected characteristics. 303 Creative claims that because its service is expressive and its owner objects to same-sex marriage, it can’t be required to obey Colorado’s law. Not to afford it an exemption, the company argues, compels it to speak against its will and violates its free speech rights.

Read more at: https://www.nytimes.com/2022/12/05/opinion/303creative-first-amendment-supreme-court.html