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Where should we draw the line between gay rights and religious rights?

AP Photo/Andrew Harnik
People on both sides of the debate rally outside the Supreme Court in Washington on Dec. 5, 2022, in the case of a Christian graphic artist who objects to designing wedding websites for gay couples, the latest clash of religion and gay rights to land at the highest court.

It’s generally not a good idea for an opinion writer to begin a column about a controversial issue with, “I’m not sure how I feel about this one — I think both sides have a good argument.” Opinion writers aren’t supposed to waffle; they’re expected to come down on one side or the other, and with something resembling confidence and certainty. Wishy-washy doesn’t cut it.

Except — and here’s your wishy-washy alert — I’m not sure how I feel about a case that went before the Supreme Court this week, a case involving gay rights and religious rights, because I think both sides have a good argument.

The case involves a woman from Colorado, a graphic artist and website designer, Lorie Smith, who wants to offer wedding websites but says her Christian faith prevents her from creating content that celebrates same-sex marriages.

My gut reaction is: too bad. Once you open a business you have to serve the general public. That’s essentially what the Colorado law says.

It’s also what David Cole, the legal director of the American Civil Liberties Union, says in an op-ed for the New York Times. “Can an artist be compelled to create a website for an event she does not condone? … The answer would seem to be obviously ‘no,’” he writes.

“But that’s the wrong question,” he goes on to say. “The right question is whether someone who chooses to open a business to the public should have the right to turn away gay customers simply because the service she would provide them is ‘expressive’ or ‘artistic.’ Should an architecture firm that believes Black families don’t deserve fancy homes be permitted to turn away Black clients because its work is ‘expressive’? Can a florist shop whose owner objects to Christianity refuse to serve Christians? The answer to these questions would seem to be, just as obviously, ‘no.’”   

The First Amendment, Cole acknowledges, gives all of us the right to hold and express what he calls “bigoted views” — but “it doesn’t give businesses the license to discriminate.” But isn’t there a difference between a business that simply sells goods, whether the goods are cars or shoes or hamburgers, and one that is engaged in creative expression? Isn’t expression the very essence of “speech” — and isn’t speech protected by the First Amendment?  

During oral arguments this week, Justice Neil Gorsuch — one of the conservative justices on the court — described Lorrie Smith as “an individual who says she will sell and does sell to everyone, all manner of websites, (but) that she won’t sell a website that requires her to express a view about marriage that she finds offensive.” Before you say, “That sounds reasonable,” consider what Justice Sonia Sotomayor, a liberal, wanted to know: “How about people who don’t believe in interracial marriage? Or about people who don’t believe that disabled people should get married? Where’s the line?” 

For the record, Smith says she has no problem working with gay people — and she would, she says, if they needed help with graphics for an animal rescue shelter, for example, or to help organizations serving children — but not to celebrate a gay marriage.  

If all this sounds familiar, it’s because five years ago, the Supreme Court heard a similar challenge to Colorado’s law. In that case, a baker named Jack Phillips objected to designing a wedding cake for a gay couple. That case ended with a limited decision — and set up a return this week of the issue to the high court. 

At the time, I wrote,  “If you open a store on Main Street, while you have the right to refuse to bake cakes adorned with Nazi slogans, you don’t have the right to refuse to bake cakes for gay weddings. Nazis aren’t a protected group in the Colorado civil rights law — or any other state civil rights law; discriminating based on sexual orientation, however, is against the law — and not only in Colorado.

“I hope that someday the Court, while acknowledging the importance of a merchant’s religion, goes on to say that bakers and florists and photographers can’t turn away customers because of their sexual orientation. In my view, they shouldn’t have to deliver the cake or the flowers to the actual reception. Nor should they have to take wedding pictures at the wedding. That would be asking too much. But once you open your establishment on a city street, you shouldn’t be able to discriminate based on things like race, religion or sexual orientation.

“But I readily acknowledge that it’s complicated.”

The ground beneath my feet doesn’t feel as firm today as it did when I wrote those words almost five years ago. I’m still all in on gay rights. And I’m still uneasy with people who use religion to discriminate. But today, I’m more apprehensive than I was five years ago about the government using its considerable power to compel people of faith — to require them — to either bake cakes or take pictures or create websites — or face financial penalties, or worse. 

That said, I’m still not sure where I stand on this particular issue. I’m still not sure where we should draw that line between gay rights and religious rights. Every now and then, even an opinion writer should be allowed to acknowledge that he’s conflicted, that both sides seem to have legitimate points, that life is complicated and it’s not all black-or-white. We’re polarized enough these days. A little ambivalence isn’t the worst thing.   

Bernard Goldberg is an Emmy and an Alfred I. duPont-Columbia University award-winning writer and journalist. He was a correspondent with HBO’s “Real Sports with Bryant Gumbel” for 22 years and previously worked as a reporter for CBS News and as an analyst for Fox News. He is the author of five books and publishes exclusive weekly columns, audio commentaries and Q&As on his Substack page. Follow him on Twitter @BernardGoldberg.

Tags 303 Creative v. Elenis gay rights Masterpiece Cakeshop v. Colorado Civil Rights Commission Neil Gorsuch religious rights Supreme Court of the United States

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