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Can a shop owner be compelled to celebrate same-sex marriage?

The other recent Supreme Court case that I'm on the fence about is 303 Creative. In that one, Lorie Smith didn't want to create a website celebrating a same-sex marriage and the Court upheld her refusal.

In my initial post about it, I said the Court relied on a "thin distinction indeed": namely that while Smith was required to serve LGBT couples in her (virtual) shop she wasn't required to sell them whatever they wanted. But it is of such thin distinctions that case law is made.

Consider an ordinary shop that sells merchandise, not customized websites. It is full of Christian t-shirts and mugs and whatnot that celebrate marriage but none of the goods celebrate same-sex marriage. If a gay couple comes into the store, the owner is required to sell them anything they want whether he approves or not. That's public accommodation. But if the gay couple isn't happy with his selection of stock for sale? That's too bad. Nobody thinks the owner is obligated to carry any merchandise he doesn't want to.

Or try on for size another, more incendiary analogy. After the Civil Rights Act passed, the Supreme Court ruled in Heart of Atlanta that motels (and similar establishments) were required to serve customers of all races. This presumably extended to prohibiting certain kinds of speech too: a motel, for example, couldn't display a sign saying "No Negroes Allowed" as a way of discouraging Black customers even if, in the end, they'd cough up a room if they had to. At the same time, the owner of the motel also couldn't be compelled to say affirmatively nice things about Black customers if he didn't want to. Nor could he be forced to display a sign saying "Negroes Gladly Welcomed Here."

The parallel with 303 Creative is obvious, and it's one that Sonia Sotomayor persistently avoids addressing in her dissent. There's no question that Smith is required to serve on an equal basis any LGBT couple who shows up at the door. That's uncontested, and Sotomayor is eloquent and outspoken in insisting on this. But can Smith also be forced to affirmatively say things she doesn't want to just because a customer wants her to?

This is a far more subtle question. It goes without saying that I, personally, find it abhorrent that Smith is so narrowminded and cruel in her views. But my personal opinion has nothing to do with the law in this case. In the end, I think the Court probably got it right: This really is a fairly cut-and-dried First Amendment case, and Smith has the right to say—or not say—what she wishes. I don't like it, but the First Amendment is meaningless if I support it only for speech I like.

94 thoughts on “Can a shop owner be compelled to celebrate same-sex marriage?

  1. ProbStat

    What I'm waiting for is for a couple -- let's call them C. and V. Thomas -- to request that a web designer or cake decorator provide a service for their wedding anniversary celebration.

    Can the web designer or the cake decorator refuse to include images of the couple in whatever he or she produces because -- wait for it -- C. and V. Thomas are a mixed race couple, and the web designer/cake decorator is religiously opposed to interracial marriage -- ? (Leviticus 19:19 and Deuteronomy 22:9-11)

  2. illilillili

    I don't think the analogy holds. In the service industry, the service the consultant provides is to create a customization for the customer, not sell the customer a pre-chosen off-the-shelf product...

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