Website Design and Discrimination
This Supreme Court constantly amazes me. Yesterday’s oral argument in the “same sex marriage website design” case referred to compelled expressive conduct on the part of the website designer but there was barely a peep about discrimination. The case concerns a woman who designs wedding websites, and she objects to doing that for same-sex couples on religious freedom grounds. This was, she argued, compelled speech violating her First Amendment rights.
No doubt there is some force to that argument, but Justice Kavanaugh’s analogy to commercial jewelry sales which he seemed to be saying lacked expressive content is also arguably misplaced. Isn’t a jeweler who sells wedding rings to a same sex couple implicitly endorsing the relationship in a similar way to the website designer? Why can one refuse to deal but not the other?
But the analogy that strikes me as more apt is discrimination. If the website designer was refusing to work for Black couples, is there any doubt we’d find a violation of the Civil Rights Act of 1964? There was barely a peep at the argument about this analogy, and what peeping there was focused on anti-miscegenation statutes from the days of Jim Crow. What if the website designer asserted that her religion compelled her not to support Black marriage or Black rights (let alone, God forbid, racial inter-marriage)? Don’t say it couldn’t happen. Race discrimination and segregation were behind the great Baptist split, into the American Baptist and Southern Baptist conventions years ago, and we still deal with the consequences of that split today in the sense that right-wing evangelicalism has some of its roots in that division. Why does the First amendment/religious freedom argument sound better when applied to same-sex marriage than to racial discrimination? And why wasn’t there more focus on the discrimination analogy than there was on the compelled speech point?
Richard P. Swanson
Vice President, NYCLA
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