The United States may finally be on its way to forging a truce between advocates of same-sex marriage and religious opponents who want no part of it. It is a difficult task.
Congress is the architect of part of the truce. The Senate is advancing a bill, with bipartisan support, to ensure that same-sex marital status and benefits are secure in all 50 states. The goal is to sign it into law before Congress adjourns.
Meanwhile, on December 5, the US Supreme Court will hear a case about Colorado website designer Lorie Smith who wants to customize websites that host weddings, but not same-sex weddings.
Colorado law requires businesses to serve all customers, regardless of race, ethnicity, or sexual orientation. Smith is fine with that. She says that she has never turned away gay or lesbian clients. But she is limited to creating websites for same-sex marriage.
Smith wants to post a sign saying that he will design websites only for marriages between a man and a woman, in accordance with the teachings of the Bible.
The Colorado Civil Rights Commission says “no.” The sign would be harmful to the gay community. If Smith wants to make wedding websites, he must also make same-sex wedding websites. That’s like ordering a store that makes Christmas decorations to also make Hanukkah decorations, or a Muslim caterer to serve pork chops.
Smith is suing for the right to post his sign. When he lost in the lower courts, dissenting Justice Timothy Tymkovich mused that “we’ve gone from ‘live and let live’ to ‘you can’t say that’”.
Sounds familiar? In 2018, the Supreme Court ruled in a similar case, Masterpiece Cakeshop v. Colorado Civil Rights Commission. Owner Jack Phillips said his religion prevented him from designing cakes to celebrate same-sex marriages.
The Court ruled 7-2 in favor of Phillips, arguing that Colorado had taken a mocking and dismissive attitude toward his religion.
Even so, the Masterpiece ruling was not a masterpiece of legal reasoning, which is why the Court is now considering Smith’s battle.
The attitude of the Colorado authorities towards the religious continues to be “let them eat cake”. His approach smacks of intolerance.
Smith’s attorneys oppose coercion and “harassment litigation” LGBTQ advocates are using to target religious believers not just in Colorado but across the country: Pro-life photographer sued for refusing to take photos promotional for Planned Parenthood; a family farm is kicked out of a farmers market for posting Catholic beliefs about marriage on Facebook.
LGBTQ advocates have been devoutly heavy-handed business owners and have filed a torrent of lawsuits against them. Smith’s lawyers are urging the Court to end this “toxic legal climate.”
Some lawsuits look like traps, suggests William McGurn of the Wall Street Journal. On the same day that Phillips won her narrow victory in the Supreme Court, a transgender woman ordered a custom cake from Phillips’ store to celebrate the transition from male to female. When Phillips refused, she sued him. What are the chances that she went to Masterpiece Cakeshop randomly?
What he really wants is “not cake,” McGurn wrote. “She wants to force Jack Phillips to deliver a speech he objects to, or force him out of business if she doesn’t.”
Opining on Smith’s case, the American Civil Liberties Union asks if architecture, photography and other creative businesses can post signs saying “We do not serve blacks, gays or Muslims.”
It is obvious that signs like that would be abominable and unconstitutional. Smith’s sign does not exclude any group, just a type of product that is inconsistent with your faith.
Smith’s lawyers are urging the Court to “harmonize” the conflicting rights here: Americans’ long-standing right to free speech and the LGBTQ community’s right to equal treatment. Harmonizing is the right approach.
In our pluralistic society, neither party can win outright, leaving the other party without rights or a voice.
Judge Tymkovich said our only option is to take a “live and let live” approach. Expect most of the judges to agree.
Betsy McCaughey is a former New York Lieutenant Governor and Chair of the Committee to Reduce Infection Deaths. Follow her on Twitter @Betsy_McCaughey.