Instead, Smith argued that she would like to expand her business into making wedding websites but didn’t feel safe doing so with the specter of Colorado’s civil rights law hanging over her head. The court obliged her with a 6-3 decision divided along partisan lines.
On the legal merits, the decision is correct; it would be hard to square a different ruling with previous high court jurisprudence that has affirmed broad rights of individual expression, including protections against compelled speech. (See, for example, National Institute of Family and Life Advocates v. Becerra, in which the court ruled that California could not force crisis pregnancy centers to provide information about how to obtain abortions.) Government attempts to compel speech need an overwhelming rationale, and the court ruled that Colorado’s law doesn’t provide a sufficient one.
Wait … Isn’t preventing discrimination against LGBTQ Americans a vital public purpose?
Yes, of course, ensuring that LGBTQ Americans can access the same goods and services as everyone is an important public purpose. At the same time, I hope we can all agree that the protection of free speech and religious liberty is also an essential purpose. Unfortunately, there are boundaries where these rights clash, and one has to at least partly give way.
The best legal argument for why First Amendment rights should prevail in such a conflict is that they are included in the Bill of Rights, right up front. But there are also practical reasons to favor free speech, even in cases like this, where it affects protected minorities.
For in the long run, freedom of expression and conscience protects minorities much more than majorities. The people authorities tell to shut up are never the owners of “Puppies Are Cute” billboards; they are the ones saying things that a lot of people disagree with. So it is in the interest of minorities to support strong protections for speech, even offensive speech.
Which brings me to another practical question involved here: Why was the court arguing about a hypothetical?
Presumably because the events at issue are rare — so rare that apparently a test case had to be constructed. Some 71 percent of Americans support same-sex marriage, and the percentage is undoubtedly higher in creative fields. Even among people who don’t support same-sex marriage, I’m betting that many are willing to leave their conscientious objections in church while collecting the hard-earned money of their LGBTQ customers.
On the flip side, about 3.5 percent of the population identifies as lesbian, gay or transgender. (I am excluding bisexuals from this count, because they will often end up marrying someone of the opposite sex.) These Americans disproportionately live in liberal areas where businesses are particularly likely to be queer friendly. Which means those two minorities come into contact even less often than chance would predict — and apparently not often enough to rapidly produce good test cases.
For supporters of these kinds of speech restrictions, however, it’s not enough for such encounters to be relatively uncommon. LGBTQ couples must never run the risk that anyone will refuse to service their weddings. It’s a matter of dignity, of treating LGBTQ folks with equal respect. And that’s a powerful argument.
Yet for Smith, and those who share her beliefs about sexual morality, this is also a matter of dignity, of being permitted to express their true and authentic selves in all facets of their lives. It’s impossible to accommodate both these demands for dignity completely. We could of course declare that one group has a right to dignity and the other doesn’t — which would be the preferred outcome for many folks on both sides of this case. But no one is winning decisively enough to be sure of total victory, as the Walt Disney Co. recently discovered and as their antagonists in Florida’s state government will undoubtedly realize in turn.
What we can do is settle on a truce that allows each side a reasonable degree of freedom. Religious traditionalists shouldn’t be able to stop LGBTQ folks from getting married or accessing public accommodations such as housing or health care, but civil rights authorities shouldn’t be able to force religious traditionalists to express support for something they oppose. This will not fully satisfy anyone. But sometimes securing rights for yourself means respecting someone else’s right to be grievously wrong.
