Law prohibits discrimination against persons, not ideas

by John Banzhaf

Although based primarily upon the First Amendment protection against state-compelled speech, Friday, June 30’s Supreme Court decision involving a Colorado web designer, which had been described as presenting an irreconcilable conflict between two fundamental rights, actually protects both by recognizing that statutes prohibit discrimination based upon characteristics (such as sexual preferences) of the customer, not on the ideas (such as about same-sex marriages) sought to be expressed.

In one sense, this is nothing completely new, says public interest law professor John Banzhaf, noting that the majority opinion quotes from its earlier wedding cake decision: “States may protect gay persons, just as [they] can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”

It also notes that Ms. Smith’s refusal to design a custom web site supporting same-sex weddings is not based upon the characteristics (e.g. sexual preferences) of the customers who may seek to employ her, but rather on the idea (e.g. favoring or at least supporting same-sex weddings) she does not wish to express. More specifically, it says:

“Colorado urges the Court to look at the reason Ms. Smith refuses to offer the speech it seeks to compel, and it claims that the reason is that she objects to the ‘protected characteristics’ of certain customers. But the parties’ stipulations state, to the contrary, that Ms. Smith will gladly conduct business with those having protected characteristics so long as the custom graphics and websites she is asked to create do not violate her beliefs. Ms. Smith stresses that she does not create expressions that defy any of her beliefs for any customer, whether that involves encouraging violence, demeaning another person, or promoting views inconsistent with her religious commitments.” [emphasis added]

So web designers, and presumably also bakers, while they may not discriminate on the basis of the characteristics of the customer (e.g., their sexual preferences), cannot be forced to create works with a theme or message to which they are strongly opposed.

This conclusion is dictated by the Constitution, says the majority, although the same conclusion could be achieved simply by giving the words of anti-discrimination statute their plain meaning, suggest Banzhaf.

In other words, there is, he says, a crucial distinction which must be made between:

■ Refusing to provide a product or service based upon protected characteristics of the customer (e.g. the customer’s race, sex, religion, sexual preferences, etc.) VS

■ Refusing to provide a product or service based not upon a protected characteristic of the customer, but rather upon the speech/message involved (e.g., for or against same-sex marriage, abortion, etc.)

Such a policy protects customers who are homosexuals from being denied the same choice of products and services as heterosexuals, while at the same time permitting businesses to refuse to provide certain products or services to everyone, regardless of their sexual preferences or other individual protected characteristics, says Banzhaf, who has won over 100 cases of discrimination.

It also has the advantage of not requiring courts to try to decide just how much individual creativity (i.e. free speech) is involved in creating cakes, websites, or arrangements of flowers at a wedding, and of not limiting the protection against compelled speech to those with objections based upon religious views but not objections based upon non-religious moral, ethical, or other concerns.

For example, a baker is free to refuse to provide a wedding cake celebrating a same-sex wedding – if he would refuse to provide it even if the customers were heterosexual – if his refusal is based upon religious concerns, or if he simply dislikes same-sex weddings for whatever reason.

A web site designer is free not to design a website celebrating sexual orgies, whether he refuses based upon religious concerns, or is an atheist who objects on grounds of morals, or if he objects only to the general appearance of the design. or to the impact such a web design might have upon his reputation in the community.

Indeed, since some same-sex marriages involve two heterosexuals who marry for various reasons other than love or sexual attraction – e.g., for tax and/or inheritance advantages in certain circumstances, or for example two elderly widows who are both heterosexual living together, etc. – refusing to design a website for a same-sex wedding would not even necessarily involve discrimination based upon sexual preference because it would potentially impact cakes for same-sex heterosexual as well as homosexual couples.

Interestingly, Banzhaf has been writing for several years proposing this balancing of interests, and this reading of anti-discrimination statutes, which he says were beginning to be accepted by some courts.

Here’s what he has written, and how other courts have reached similar conclusions:

Prof Banzhaf notes that similar issues have been resolved without violating free speech rights on the one hand, and a right to be served by a public accommodation regardless of a customer’s race, sex, religion, sexual preferences, etc. on the other, by court decisions which correctly balanced the apparently competing interests based simply upon a clear reading of anti-discrimination statutes.

An appellate court struck such an interesting balance between the free speech and religious freedom rights of businesses which oppose messages based upon their content, and gay people who insist upon being served by a business regardless of their sexual preferences.

It follows a legal analysis similar to that originally proposed by Banzhaf who suggested that anti-discrimination statutes prevent discrimination based upon the characteristics of a customer (e.g., being gay), but not a refusal to send a message related to that characteristic (e.g. same-sex marriages).

Kentucky’s Court of Appeals held that a t-shirt firm which refused to print t-shirts promoting a gay pride festival did not discriminate against gays, drawing a sharp distinction between refusing to serve customers who happen to be gay, and refusing to print shirts which may support gay activities, even if requested by straight customers.

As the court put it, “the ‘service’ [defendant] HOO offers is the promotion of messages. The ‘conduct’ HOO chose not to promote was pure speech.”

This simple distinction is also illustrated by two decisions involving bakeries. In the first, the Colorado Civil Rights Division ruled that a cake shop could not refuse to make a wedding cake for a gay couple, calling it discriminatory, because its refusal was based upon the sexual preferences of the customers requesting the product or service.

However, when a man ordered cakes with writing a Denver bakery considered derogatory towards gays, its refusal to provide the cakes was upheld because the bakery would refuse to provide a cake with that language to any potential customer – gay or straight, Christian or atheist, etc. – and for any purpose.

Although the customer claimed that the refusal to provide a cake with this message was “demeaning to his beliefs,” the state agency said the owner was within his rights to refuse to put a message on cakes which included “derogatory language and imagery,” provided it would do so for all customers regardless of their own sexual preferences.

In the Kentucky case, although the business accepts and serves all customers, the messages the company is willing to print are “limited by the moral compass of its owners,” and the business refuses “any order that would endorse positions that conflict with the convictions of the ownership.”

This is a clear and simple distinction between the customer and the message he wishes to send.

To refuse to sell any t-shirt to a person simply because he is gay would violate the statute, whereas refusing to print a t-shirt which promotes or criticizes a gay lifestyle or activities for any potential customer regardless of sexual preference is not illegal discrimination.

The court noted that agency’s analysis (which it reversed) – which asks whether the message was discriminatory – would lead to “absurd” results: for example, “a man who requests t-shirts stating, ‘I support equal treatment for women,’ could complain of gender discrimination if HOO refused to print the t-shirts because it disagreed with that message.”

Similarly, Banzhaf’s published analysis had suggested that a baker who refused to bake a swastika-shaped cake for a white supremacist group would not be guilty of illegally discriminating on the basis of race if he had a policy against baking a cake in the shape of a swastika, whether it is ordered by a German Nazi sympathizer, a racist fraternity, a Jewish student seeking to “take back” the hated symbol (similar to a recent situation at GWU), a Black customer with a warped sense of humor, a crude friend who wants it as a joke, etc.

In each case, there is no discrimination based upon a protected factor because the baker is treating all prospective purchasers the same, regardless of race, sexual preference, gender, religion, etc.

Naturally, the argument in favor of the baker who did not want to bake a swastika-shaped cake celebrating white supremacy might seem stronger if he were Black and/or Jewish, and it was also based upon his strongly and consistently held religious beliefs.

Indeed, one judge in the Kentucky case did cite statutes designed to protect religious freedom, and which require governmental actions which substantially burden religious freedom to be struck down unless they pass the “strict scrutiny” test.

Thus, the judge ruled, “the central issue here is whether the fairness ordinance is the least restrictive way . . . to prevent local business from discriminating against members of the gay community without imposing a substantial burden on the exercise of religion.”

Banzhaf suggests that the former analysis – preventing discrimination based upon a specific protected characteristic of the customer (e.g., his sexual preference) and not on whether objection to the message might be based upon religion, is better and fairer, since it means the government (bureaucrat or judge) doesn’t have to engage in an often-subjective balancing act regarding how compelling is the government’s interest, are there other feasible approaches, etc.

Indeed, notes Banzhaf, reasonable and fair minded bakers might not want to decorate a cake with writing which promoted anti-Jewish white supremacy even if they were not Jewish, or indeed followed no religion at all.

They should enjoy the same freedom as the Jewish baker not to have to engage in expressive conduct (i.e. compelled speech) to which they object, regardless of the grounds for the objection, argues Banzhaf.

John Banzhaf III, B.S.E.E., J.D., Sc.D. is a nationally-known professor and practitioner of public interest law, and a former scientist, engineer, mathematician, and inventor.