The United States Supreme Court today heard arguments in a lawsuit filed by Christian web designer Lorie Smith against the state of Colorado. Smith claims that the state’s public accommodations law would require her to design wedding websites for homosexual couples, which would make her feel ookie and constitute compelled speech, a violation of the First Amendment. The state of Colorado responds that businesses must offer their services equally to all members of the public. without discrimination by “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”
The hearing brought up a lot of hypotheticals, because Smith hasn’t actually been forced to either make a gay website or tell gay customers to take a hike. Smith filed her lawsuit over six years ago preëmptively, before actually launching her website and taking any customers.
Smith’s preëmptive suit raises lots of interesting constitutional questions worth deeper discussion:
- Can we require an artist (and Smith portrays herself not as a business owner producing goods for sale but as an artist expressing herself and fighting for all artists, including the Democrats and atheists) to create art that expresses themes antithetical to her beliefs?
- Is Smith really an artist?
- Does an artist working on commission enjoy some special status that separates her from other businesses (cafés, auto repair shops, plumbers…) that don’t get to turn away homosexual customers and other paying customers who belong to protected classes?
- Come at the above question from a different angle: Might the First Amendment apply to “art”—prose, poetry, painting, sculpture, a website—that I create to express myself but not apply to “art” that I produce for customers who pay me money to express their ideas and identity?
- Is Smith refusing to provide service to members of a protected class (i.e., turning down gay customers), or is Smith refusing to produce certain products, specific messages she finds disagreeable and which she would refuse to produce for any paying customer, gay, straight, black, white, male, female, one-legged, two-legged? If the former, it seems clear she’s committing a vile and bigoted act which the First Amendment will not shield from the public accommodations law. If the latter, it seems she’s engaged in simple content moderation, akin to the way Twitter refused to serve the cause of spreading messages of hate and coronavirus misinformation (at least before Christoper Walken from A View to a Kill took over the company).
The prevalence of hypotheticals in today’s hearing makes me wonder if we really need the judicial system to answer these questions, if maybe our conservative justices could take a conservative position, not intervene, and let the market resolve this issue.
Remember, as far as the lawsuit tells us, Smith has never actually faced the quandary that has motivated her six-year-long litigation. No clients have come seeking Smith’s artistry to celebrate Adam and Steve’s nuptuals, and I suggest no tasteful clients ever will.
Smith makes a big deal of her status as an “artist”, but she emphasizes that her “art” is an expression of God’s calling to spread Christian beliefs. She’s not an artist; she’s a Christian artist. And Christian artists just aren’t as good as artists in general or artists who happen to be Christian. The Christian artist isn’t looking to be open and creative and innovative; the Christian artist gets stuck in a holy rut, churning out the same Precious-Moments lambie-pie paintings and Jesus-is-my-boyfriend songs and other youth-retreat treacle that all says the same thing: “God is good, God is great—now I can enter Heaven’s gate!”
(Yes, yes, plenty of artists who just happen to be Christian or outright heathens also produce complete garbage, but seriously: compare the oeuvres of two of this year’s Kennedy Center honorees, Amy Grant and U2. Amy Grant is the first Christian pop singer so honored at the Kennedy Center, and there’s a reason for that. U2 is fronted by good Catholic boy Bono, and there songs have enough Jesus juice to inspire the U2charist, but they are not Christian artists, and they have produced a more varied, creative, and durable body of work than Amy Grant. There—fight about that!)
Had Smith actually started her business and branded her service as “Christian art”, she would have ensured that 99% of attentive, artistically sensible, and socially inclusive customers would take their business elsewhere. Smith might have gone out of business or lingered in unprofitability not because of a boycott but because customers would recognize that her “Christian art” wouldn’t provide the same value for the dollar as that of other artists not so bound by piety.
Or look past artistic quality and consider customer service. Smith’s target market is people who want websites to celebrate their wedding. Smith has declared her professional artistic focus is celebrating the message of her own religion. “Gee, honey,” I can hear website shoppers saying to their partners, “do we want a website designer who’s focused on her own message, or do we want an artist who will create a website that’s all about us?” Again, discerning customers will take their business elsewhere.
Alas, discernment among the pious is in short supply. Just as the Newsboys keep selling out concerts, Smith can probably find plenty of Christian customers for her Christian art, customers who, like her, care far less about art than about overt expressions of their salvation-seeking fealty to Christ.
An Alito Court ruling in Smith’s favor will carve out a little more legal space for Smith’s white Christian nationalism (that is what the Christofascists she’s fronting for, the Alliance Defending Freedom, are really after). But practically, it shouldn’t leave any customers disappointed, because, seriously, if you want a quality website celebrating your gay wedding, or any wedding, why would you buy an inferior artistic product from a bigot more concerned with promoting her own agenda than giving voice to your joy?