The Supreme Court Contemplates Rolling Back One of the Great Achievements of the Enlightenment
Should a wedding website designer be able to deny service to a gay couple if gay marriage violates her religious beliefs?
I’m a Lutheran. I’ve been through Lutheran confirmation classes and attended a college affiliated with the Evangelical Lutheran Church of America, where I was required to take a class that contained a unit about Martin Luther. Not only do I attend a Lutheran church, but I serve as president of the church’s council. I’m so Lutheran I’m saved by Grace, not Works. I’m so Lutheran I call canned fruit suspended in Jell-O a “salad.” I’m so Lutheran that whenever someone says “May the Force be with you” in Stars Wars, I instinctively reply, “And also with you.”
Here’s something you may not know about Lutheranism: We kind of have this centuries-old beef with Catholicism. Like, our main dude grabbed a hammer one day and pretty much set that whole Protestant thing into motion, which, according to the history books, was kind of a big deal.
Now, is that beef a big deal today? I don’t think so; I mean, when I was a kid, the only thing I knew about Catholics was that they were the reason the school cafeteria served fish sandwiches on Fridays in the spring, which I thought was great because I liked fish. And I have Catholic aunts and uncles and cousins and in-laws and they’re all cool. Not only have we never gotten into an argument over theological matters like salvation or transubstantiation, but I can’t even recall a single time any of that came up as a topic of conversation. Now, as for the whole Pope thing and whether or not women can be priests…well, there is that, but I mean, it’s not as though Catholics never argue over any of that stuff amongst themselves, right? And while there may be a streak of German stubbornness running through my Old World bones (don’t get me started on indulgences) Lutherans have a reputation in this country as nice people, so we’re probably not going to pick a fight with Catholics over something like the divinity of Mary, whom, I think we can all agree, was pretty fly.
Yet, after 500 years, us Lutherans and Catholics still haven’t let bygones be bygones and come back together as one big happy Christian family. Maybe at this point everyone’s fine with everybody just doing their own thing and it’s not worth the bother. Or maybe there really are differences we can’t overcome. (Here’s a proposal: Only four sacraments, but I’m flexible about which ones.) Our way of dealing with those differences today is to live and let live. But once upon a time, those differences were deadly serious. In the centuries following the start of the Protestant Reformation, millions of Europeans died as a result of religious warfare, with Germany losing an estimated one-third of its population. So while I am fortunate enough to be able to poke fun at those religious differences today, there was a time when those differences were literal matters of life and death.
I was thinking about those differences this week in light of the Supreme Court case 303 Creative LLC v. Elenis, which was argued before the Court last Monday. The case involves a Colorado website designer who now wants to start a business designing websites for weddings. However, she wants to post on her business’s website that she will not create websites for weddings involving non-heterosexual couples, as such nuptials violate her religious beliefs. The state of Colorado passed a law in 2008 prohibiting businesses from discriminating against gay people and from posting such statements to that effect. The business owner has subsequently sued Colorado on First Amendment grounds, arguing that forcing her to design websites for something she opposes on religious grounds is essentially compelling her to speak in a way that violates her conscience. (One thing to note about the case: The designer’s message has not yet been posted to her website, she has not yet refused to work for a gay couple, and Colorado has not taken any disciplinary action against her. Since no one has been harmed, this can be viewed as a hypothetical case with no actual victim.)
There are a lot of ways to view this case. Those who would side with the state of Colorado would consider this a civil rights matter, with the website designer discriminating against people on the basis of their sexual orientation. Those who would defend the website designer would argue this case is about freedom of religion and an individual’s ability to act in accordance with their conscience in the absence of government coercion. And as many freedom of religion cases tend to do, this case actually becomes about freedom of speech and an individual’s ability to say what they believe, or, in this case, to refrain from saying something they don’t believe. The case also raises questions about what constitutes religious speech, political speech, and even artistic speech, and if the website designer is engaged in any of that by creating a website or merely conducting a business transaction.
The conservative majority on the Supreme Court seems prepared to side with the website designer out of a concern the government is compelling her to say something she doesn’t want to say. I think that’s an overly generous reading of what the website designer is actually doing. Sure, she is “speaking,” but not in a way in which the speech is identifiably and uniquely her own. She is taking information provided to her by the couple (their names, dates, times, locations, perhaps some personal stories or welcoming messages, a sentimental passage or two, etc.) arranging it on a webpage with pictures and links, and making it all look nice. She isn’t being asked to compose anything original, add her own thoughts to the page, or endorse the marriage. The reason she can make a living doing this is because she possesses templates that event-specific words can be added to, design skills that make the webpage appear aesthetically pleasing, and the know-how to make a functional website out of all that. What she’s done isn’t really “speak” but rather provide the couple with a product and service to help them communicate with others.
Some will argue that in designing these websites, the web designer is bringing her own special creative touch to the product, which makes it constitutionally protected speech. But there has to be a distinction between “art” and something that is merely “artsy.” Something “artsy” bears the hallmarks of “art”—an eye for composition, color, shape, scale, etc.—yet doesn’t cross into the realm of a unique, personal artistic creation. People value “artsy” things because they tend to look nice, and consumers value those who make nice-looking products. Those in the market for a wedding website not only want a functional website but one that is also well-designed and visually appealing, something “artsy” but not necessarily “art.” Now, do I know where the line is drawn separating “artsy” from “art”? No, there’s going to be a grey area there (one, I would argue, wedding photographers would fall into, for example.) But as a commercial undertaking, general wedding website design is certainly more concerned with simply making an aesthetically pleasing, well-designed product than an expressive work of art, which should in turn grant the state greater power to regulate that business’s practices.
But what if the business is a religious undertaking? Perhaps the website designer is motivated by her faith to design websites for weddings and regards her business as providing a service to her faith community. In such circumstances, forcing her to operate her business in a way that violates her faith would be deeply offensive. I’m sympathetic to this argument. There are faith-based businesses like this out there (for example, Christian bookstores, Kosher or Halal restaurants, religious retreat centers, etc.,) whose owners and operators probably find it fulfilling to be able to make a living in a way that honors their religious beliefs and lifestyle. I’m fine with exempting such businesses from certain state laws in the way churches are exempt from many laws.
Yet we should be able to distinguish between faith-based businesses that serve a specific religious community and other businesses that perhaps are owned by religiously devout people and serve religious clientele but have a more secular orientation. 303 Creative seems to fall into this latter category: Its owner is religious and the company intends to serve many people planning a religious ceremony but the company does not appear to be pursuing a religious mission or catering to a certain religious demographic. They appear willing to sell their product to any interested couples—interfaith couples, atheist couples, divorced couples, a couple expecting a child, interracial couples, a couple who isn’t getting married in the owner’s faith tradition, etc.—but not same-sex couples (who, by the way, have a legal right to marry and have historically been discriminated against in this country.) Only then do the religious beliefs of the company’s owner come into play. I don’t expect someone looking for a religious exemption from the law to exhibit perfect adherence to every tenet of their faith tradition, but the exception 303 Creative is seeking seems, to paraphrase a certain church lady, rather convenient to me.
I am not arguing here that churches need to marry gay couples, that faith-oriented businesses are required to act in ways that violate their faith, or that artists-for-hire must accept as clients those who would commission work that represents views such artists disagree with. Contrary to the claims of 303 Creative’s lawyers, ruling in favor of the state of Colorado would not require Democrats to start writing speeches for Republicans or Black sculptors to carve crosses for Klan rallies. What I am saying instead is that if someone enters the marketplace selling a good to the general public, then the general public should be able to buy that product regardless their race, color, sex, sexual orientation, gender identity, national origin, age, or disability. That’s true even when the good the retailer is selling contains artistic elements, so long as those artistic elements don’t rise to the level of personal artistic expression.
I don’t take the concerns of the website designer lightly. Religious beliefs are deeply held beliefs of profound importance and shouldn’t be trampled on by the state. But those concerns must be balanced against the concerns of LGBTQ individuals seeking public accommodation. Demonstrate to me that the website designer is operating a faith-based business or that their work involves more in terms of art than merely making something appear aesthetically pleasing (a pretty basic expectation for anyone providing another with a service in the marketplace) and I might reconsider my opinion in the case. Otherwise, this seems like an instance of someone trying to play the God card to justify discriminatory behavior.
The six conservatives on the Supreme Court would make a major mistake siding with the website designer in this case. Perhaps it is simply cleaner jurisprudence to say that anyone who objects on religious grounds to state law for any religious reason does not have to follow that law (the Court seems to be moving in this direction ever since that ridiculous Hobby Lobby case a few years ago) or that anything involving a creative decision or design element qualifies as “art.” But I’d rather wrestle with those questions than deal with the fallout of a decision favoring the website designer.
For example, if the Court does side with the website designer, I’m not sure what would prevent a website design company or any other business with some sort of artistic element to it—a tailor, a jeweler, a landscape designer, a carpenter, a woodworker, a furniture maker, a chef, a florist, etc.—from posting a sign in their window reading, “For religious reasons, our business does not serve gays” or “For religious reasons, our business does not serve Blacks” or “For religious reasons, our business does not serve Jews.” That’s not the sort of scene most of us want to see on the streets of modern America.
But it wouldn’t have to stop with that. If there’s one thing I’ve learned from studying history, it’s that religious people can get really passionate about discriminating against people of other faiths. After all, these are life and death (and afterlife) matters of momentous importance we’re dealing with here, and many of the biggest disagreements religious people have with others is over the true nature of God. If a religious businessperson comes to the conclusion that a certain faith tradition like Judaism or Islam or Christianity, or, more specifically, a tradition like Mormonism or Jehovah’s Witness is not only false but immoral or even dangerous, what would keep that person from refusing service to such individuals on religious grounds?
Which brings me back to my deeply engrained Lutheranism and my vague understanding that my faith tradition has a long-standing gripe with Catholicism. I have heard actual living people in my extended family reminisce about that time when so-and-so didn’t go to so-and-so’s wedding because they were or were not getting married in a Catholic ceremony. We gloss over these differences now, but why couldn’t they come back? If a Lutheran or a Catholic reignited a theological grudge against the other, I’d say they’ve got over 500 years worth of disagreements to legitimize that grievance. If the Court sides with 303 Creative, what’s to keep a Catholic from posting a sign in their business window declaring, “For religious reasons, we do not serve Protestants,” or a Lutheran like me from posting a sign in their window proclaiming, “For religious reasons, we do not serve Catholics”?
Thankfully, the enduring legacy of the Enlightenment and Enlightenment-era documents like the Bill of Rights have, over the course of centuries, smoothed over these differences and helped create tolerant, liberal societies in which people of different faiths can live peacefully alongside one another while following their own faith traditions. Modern American society is not gripped by the sort of religious strife that tormented Europe some 400 years ago. I doubt the United States would descend into religious conflict if the Court sided with the website designer, but it would allow for backsliding into an era when religious animosity was a more prominent feature of public life.
That would be something I would think the six conservative justices on the Supreme Court would be very concerned with, since it is often argued by people on the Right that conservative evangelical Christians face the greatest amount of discrimination over their religious views in the United States today. I won’t hazard a guess as to whether or not that’s true, but if I was in their robes, I’m not sure I would be eager to put my name on a decision that would allow a wedding website designer to declare at the bottom of their business’s homepage, “For religious reasons, I do not serve evangelical Christian couples.”
Signals and Noise
A majority of the Supreme Court hearing the case Moore v. Harper appeared reluctant to adopt the Independent State Legislature Theory that would grant state legislatures near total control over managing their states’ elections (even to the point of tossing out electoral results and imposing their own.) Only Justices Thomas, Alito, and Gorsuch were open to the crazy idea. Yet the three remaining conservatives on the Court seemed to poke around for ways to restrain state courts in certain circumstances.
“Which gets to the larger question that supersedes all the ins and outs of the maneuvering over the Republican presidential nomination and the future of the party: How, in a matter of less than a decade, could this once-proud country have evolved to the point that there is a serious debate over choosing a presidential candidate who is a lifelong opportunist, a pathological and malignant narcissist, a sociopath, a serial liar, a philanderer, a tax cheat who does not pay his bills and a man who socializes with Holocaust deniers, who has pardoned his criminal allies, who encouraged a violent insurrection, who, behind a wall of bodyguards, is a coward and who, without remorse, continually undermines American democracy?”—Thomas Edsall, for the New York Times
Don Trump, who recently dined with anti-Semites, criticized Jewish leaders this week for not showing enough “loyalty” to him given his support (“the best, by far”) of Israel. His comments are insulting on so many levels.
The Trump Organization was convicted of tax fraud in New York. Trump was not personally implicated in the crime.
My observation about Democrat Raphael Warnock’s win in the Georgia senate run-off election: Democrats are jubilant that they’ve boosted their Senate majority by a seat. Overall, despite the loss of the House, Democrats did well this election cycle and, with the MAGAfied Republican Party in disarray, have a lot of confidence heading into 2024. But Georgia provided a natural experiment for American electoral politics, and Democrats need to learn this lesson. Consider these results:
Senate: Warnock (D) 51.4%, Walker (R) 48.6%
Governor: Kemp (R) 53.4%, Abrams (D) 45.9%
Walker ran as a MAGA Republican and was closely linked to Trump; he lost. Kemp distanced himself from Trump without moderating his own positions and won. The election produces a clear range of outcomes, with Democrats able to get between 45.9%-51.4% of the vote and Republicans able to win between 48.6%-53.4% of the vote. The variable is Trump: Throw him into the mix, and suddenly there’s a thin slice of the GOP electorate that either flips to the Democratic candidate or sits the election out. Democrats should be celebrating the way they mobilized a huge Democratic turn-out in Georgia, but that alone isn’t enough. They also need to relentlessly focus on telling voters how radical the Republican Party has become following Trump.
From the Man in the Khaki Pants:
Arizona Senator Kyrsten Sinema has put a damper on Democrats’ elation following Warnock’s victory by announcing she is changing her party affiliation to Independent. It appears she’ll caucus with the Democrats, although if she didn’t, Democrats would still have a 50-50 majority thanks to Vice President Kamala Harris’ tie-breaking vote. Still, Democratic West Virginia Senator Joe Manchin has to be looking at her move and contemplating how that might affect his relationship with Senate Democrats. If both he and Sinema went independent (Manchin is up for re-election in 2024 in a very Trumpy state) they could throw the Senate into a 49-49 tie and play kingmaker. Sinema was facing a primary challenge from Arizona Rep. Ruben Gallego, with polls suggesting she was highly vulnerable. By becoming an independent, she can avoid getting pushed out of her seat in a primary and hold Arizona Democrats hostage by siphoning off votes if they nominate someone to run against her (which would likely throw the election to the sort of right-wing nut Republicans have recently been running in elections in Arizona.) Sinema’s move is either very savvy—she may have entrenched herself in Arizona and national politics for decades—or extremely stupid; if she ends up in a minority, she won’t have any friends.
More on Sinema: Politico wonders if, unlike left-leaning independent senators Bernie Sanders and Angus King, Sinema has isolated herself by drifting toward the center. Sarah Ferris and Natalie Allison consider how difficult it will be for Sinema to organize a re-election campaign in Arizona without the help of a state party. And Nate Silver notes just how unpopular Sinema is in Arizona.
Something to contemplate: Could Sinema form a caucus of independents in the Senate consisting of herself, Joe Machin, Mitt Romny, Lisa Murkowski, and Susan Collins?
Americans hate Washington politicians so much that, for the first time since the beginning of the direct election of senators in 1917, Americans sent every incumbent senator back to Washington.
It does if you remember this basic rule of American politics: “Voters believe every Washington politician is a crook except the ones they voted for.” (Polarization plays a big role as well.) Also, this election marked the first time in Cook Political Report history that every toss-up senate race was won by the same party.
Democrats are going to have to lean on that incumbent advantage because the Senate map is far from favorable for them in 2024. Incumbent senators Joe Manchin and Jon Tester face uphill re-election campaigns in West Virginia and Montana respectively, and Senator Sherrod Brown will have his work cut out for him in GOP-leaning Ohio. Democratic incumbents can also expect very competitive races in Nevada, Wisconsin, Michigan, and Pennsylvania, and the party will have to navigate the minefield that is now Kyrsten Sinema’s Arizona. (Sinema may find in a close election that it’s better to have the party faithful with her than unmotivated by her campaign.) Scandal-plagued New Jersey Senator Bob Menendez is also up for re-election in a state that isn’t immune to voting for Republicans. Democrats’ best shot at winning a Republican seat is in Texas against Teddy Cancun, but while Texas has turned a bit more purple over the past ten years, it probably isn’t ready yet to elect a Democrat in a statewide race.
Ezra Klein of the New York Times interviewed Jacob Grumbach, author of Laboratories Against Democracy: How National Parties Transformed State Politics. Grumbach’s argument is that as our national politics have become gridlocked, the national parties have turned to the states to achieve their policy goals. This in turn has nationalized state politics, with state legislatures pivoting away from a focus on local concerns to hot-button national issues. States—not the national government—have become the places where nation-oriented policy gets made.
Speaking of which: The White House hosted meetings with Democratic state lawmakers this week to prepare for upcoming state legislative sessions.
Another one of Florida Gov. Ron DeSantis’s voter fraud cases has been dismissed. That’s the third case that’s fallen apart.
In the face of protests, China is backing away from its strict and ill-advised zero-COVID policy. On its horizon: A wave of COVID illness and death.
COVID hospitalizations are up in the U.S. again, reaching their highest level in three months. Another holiday season spike seems likely, but this year will be complicated by a rise in flu and RSV hospitalizations.
And speaking of the flu: The U.S. has never recorded this many positive flu cases in one week:
Inflation appears to be easing, although the price of services is still rising. The next economic issue to start paying attention to: A potential recession in 2023.
By Emily Stewart, for Vox: “The Economy Just Doesn’t Make Sense Anymore”
AI has developed to the point where it can compose cogent, college-level essays. How will professors adjust? Will writing remain a useful skill to learn?
German law enforcement arrested 25 individuals—including a prince, a former member of Parliament, an active soldier, and numerous members of the police and special forces units—for plotting to overthrow the German government. Never reassuring to hear about a planned right-wing putsch in Germany.
In this season of A Christmas Carol, Alexander Smith of NBC News writes about the deteriorating economic situation in the United Kingdom: “Britain is the world’s sixth-largest economy, a top-tier industrialized power that still sees itself as a cradle of the postwar welfare state. But its stagnant economy has likely just entered what the Bank of England says could be the longest recession and sharpest drop in living standards on record, and it’s the only G-7 nation whose GDP is still lower than before the pandemic. Britain once compared itself to giants like France and Germany; today many of its metrics more closely resemble Eastern Europe’s weaker economies.” Humbug.