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High court must answer nagging question of rights

The U.S. Supreme Court must stop ignoring a difficult question. The nationwide legalization of same-sex marriage, established by the court’s 2015 ruling in Obergefell v. Hodges, has a handful of photographers, cake designers, webmasters and other creative services providers in an escalating conflict with same-sex couples.

Our country was founded to protect the exercise and expression of moral convictions, including those of religious zealots. That is why the Supreme Court allows a radical church in Kansas to message hatred about the LGBTQ community.

Much of the public reviles at this, but popular sentiment receives exactly no protection in the Constitution. Conversely, freedom to exercise and express religious beliefs remains the first order of business in the Bill of Rights. The rest of the Constitution and nearly 250 years of jurisprudence lean heavily in favor of protecting individuals, whether they communicate love or hate, from the whims of popular sentiment.

If popular opinion mattered in law, the right to possess a gun, own property or protest cops would come into jeopardy. Liberty requires a content-neutral government that protects minority views — even those commonly considered offensive or outrageous — from overwhelming opposition.

Colorado baker Jack Phillips symbolizes the conflict among a handful of service providers, same-sex couples and a country enhancing the rights of LGBTQ individuals. After a panel of buffoons on the state Civil Rights Commission mocked the baker’s religious objection to designing a custom cake for a same-sex wedding, the U.S. Supreme Court humiliated them with a ruling that detailed how they abused his First Amendment rights.

In a disappointment to both sides, the court declined to answer the overarching question: May service providers decline contracts for custom expressions on a basis of religious or other moral objections?

With the narrow ruling in Masterpiece Cakeshop v. Colorado, other service providers throughout the country find themselves in similar dilemmas. Activists request creative services for same-sex weddings, sexchange celebrations or other occasions they know will offend the prospective contractor. The question isn’t whether any service provider’s views are good or bad. The question is whether they can live by them while conducting business.

The latest scuffle involves Lori Smith, a web designer who sued to overturn Colorado’s anti-discrimination law. She contends the state should not force her to contract with same-sex couples seeking websites for weddings.

A three-judge panel of the 10th Circuit Court of Appeals in Denver ruled against Smith last week, creating another opportunity for the U.S. Supreme Court to resolve this issue.

“It’s about protecting LGBTQ people and their families from being subjected to slammed doors, service refusals and public humiliation in countless places — from fertility clinics to funeral homes and everywhere in between,” said Jennifer C. Pizer, senior counsel for Lambda Legal.

If it were only that simple. We have no nationwide conflict regarding the rights of all people, including members of the LGBTQ community, to participate in conventional market transactions.

Phillips agrees. He sells anything in the store to same-sex couples. Few would blame the Civil Rights Commission if Phillips had refused to sell cupcakes to the couple. We cannot have a free country in which store managers and landlords refuse common transactions on the basis of a customer’s sexual orientation. For most 21st-century Americans, anything-goes discrimination on a basis of immutable traits would be unthinkable.

But cars, cupcakes, homes and embalming fluid are not the same as custom-designed cakes, murals and websites.

Consider a world in which no one can discriminate in the marketplace, even if a request for custom design offends the provider. In that world, the state would force a cake designer to produce a cake that says “God Hates … ” if a hate preacher demands one. In this light, the right to discriminate seems more important to the masses.

If a baker cannot discriminate on a moral objection, the baker cannot refuse a morally repugnant message.

Legally, governments in the United States are neutral about beliefs. The state cannot favor a synagogue over a mosque. A state civil rights authority cannot favor the moral views of Pope Francis over those of David Duke.

One can easily distinguish between selling cookies and designing a custom cake. Yet other transactions — think, hair design — blur the lines. The law should not allow a hair designer to refuse service because of a person’s identity. Yet, Rolling Stone assures us “far-right extremists have appropriated references to the (bowl cut) hairstyle as a chilling symbol of racism.” Maybe the state should not force a pacifist barber to provide racist haircuts to skinheads. Maybe the state should not force a Jewish undertaker to provide a loving eulogy for the likes of Nazi war criminal Michael Karkoc, who died last year in Minnesota. Are we free without the freedom to associate, which requires the freedom to disassociate?

A business cannot refuse service to Blacks. But can an artist refuse to create a Black Lives Matter painting? These are not the same.

For questions this difficult, we have a collection of the world’s greatest legal minds on the Supreme Court. The court should take the Smith case, or one like it, and try to clear this up for a country confused by competing rights, morality, the rule of law and the pressures of evolving public sentiment.

The question isn’t whether any service provider’s views are good or bad. The question is whether they can live by them while conducting business.

OPINION

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2021-08-01T07:00:00.0000000Z

2021-08-01T07:00:00.0000000Z

https://daily.gazette.com/article/282604560888814

The Gazette, Colorado Springs