303 Creative is a more important case than SFFA v Harvard

Affirmative action has been a hot-button issue for decades, which makes sense since race has been a divisive issue forever. As long as there has been a United States one race or another has been discriminated against and finding a path to race neutrality–the logic of which is inherent in Classical Liberalism, of which the Constitution is an example–has not been easy and it is not yet achieved.

As a practical matter, though, affirmative action affects fewer people than freedom of speech. Most African Americans and most Whites will think much more about affirmative action than ever face any consequences from it. As a concept it is offensive, and the people who it harms or helps are deeply affected, but to be honest for most people it is an abstract issue of fairness, not a constant presence in our lives.

Students for Fair Admissions sued Harvard because it discriminated against Asians–and indeed it indisputably did so, whatever Harvard claimed.

Last year fewer than 2000 students were admitted to Harvard, of whom a few hundred were in any way affected by racially motivated admissions choices. While it is true that each one of those students who lost out was robbed of something good and an injustice was done, the number of people affected was minuscule.

So while the decision was a step forward on the road to race neutrality, most people won’t see much of a change in their lives.

Not so for the 303 Creative case, although on its face it affects even fewer people.

For those of you unfamiliar, the 303 Creative case was about when a web designer whose religious conviction prevented them from approving of gay marriages could be forced, through a loose reading of public accommodation laws, to design a custom website for a gay wedding.

Obviously, few of us design websites for weddings, so what is the big deal?

Only this: the Court was asked to decide whether any person could be forced to express ideas with which they disagree.

Designing a custom website is a form of creative expression, in the same way that writing a song or creating artwork is. It literally is meant to celebrate something, and demanding somebody engage in the celebration of something of which they do not personally approve is essentially demanding they express ideas contrary to their moral principles. This is the same issue as with the bake who keeps being pressed to make wedding cakes for gay weddings.

Public accommodation laws came about to break the segregation of publicly available services such as hotels and restaurants. The idea was simple: some services are so vital, and in many cases scarce (a hotel in a very small town) that segregating them imposes too high a barrier to those being denied service. Not having access to bathrooms, lodgings, food, or other necessities based on race or religion shut people out of society.

As you can easily see, there are major differences in kind between expressive services and public accommodations on their face. Bakers and web designers don’t provide services necessary to daily life, are easily interchangeable, and in any case, nobody was being denied services based on who they were, but rather on what they wanted to be expressed. The baker would bake a cake for anybody regardless of race or sexual orientation; he simply wouldn’t decorate a cake specifically celebrating a gay wedding. Same in the 303 Creative case.

Basically, the State of Colorado’s position was that it could force 303 Creative to produce a website celebrating a gay wedding (or Pride, or anything else that a protected class wanted to be said) because the State has granted special rights to certain classes of people, allowing them to force others to express ideas with which they don’t agree.

The Court ruled against that assertion.

Should Colorado have prevailed, the principle that people can be forced to express ideas they morally object to would have been upheld.

This would not, of course, apply to all ideas, but merely the ideas that the state legislature or the bureaucrats the law has empowered decide should be mandatory. Jews wouldn’t be forced to bake cakes with swastikas, but only because the legislature doesn’t approve of Nazis. If that should change, the right to refuse would go away.

Same with any other idea or group. Your privilege to force others to do or say things would be determined by legislative fiat, meaning that your rights are utterly dependent upon the whim of others. This is the same thing as saying you have no First Amendment rights at all.

This is, of course, the actual position of many Leftists, who are foursquare behind censorship and openly so.

Justice Sotomayor actually argues that your freedom ends where any commerce begins, essentially denying your ability to exist as a member of society and have freedom of speech at all.

I read the entirety of the Supreme Court’s decision on the Wedding Website Designer’s case. Sotomayor said something out loud in her “dissent” that she should have kept to herself:

In Sotomayor’s view, the “public market” (whatever that is) belongs to the “state”. There is no… pic.twitter.com/cHZyiN9Czn

— Boaty McBoatface (@22pecoman) June 30, 2023

Her argument is pretty simple: if you engage in economic activity, the state can compel your speech. That is quite an argument. It would require Catholic Churches to close their churches to weddings, for instance, unless they agreed to host weddings for anybody in a protected class (gay weddings). If any money changes hands for anything, it is subject to the scrutiny and compulsion of the state.

You can, I suppose, go off to live in a forest somewhere and buy nothing ever under this logic, but once you join what she calls the “public market” (a novel concept, as far as I know) the state can compel your speech.

I have never been a huge fan of establishing  “protected classes” for a variety of reasons, although I understand the reason why they were created, and concede that they served a good purpose to break the back of state-supported discrimination. The concept rankles because it undermines a competing good: free association. We see the results now that spas intended for the exclusive use of women now are required to accept people with penises since some people with penises are considered members of a protected class.

The state gets to decide who you associate with, what you can do, what you can say, and what the limits of your freedom are. It’s a rat’s nest, and life becomes a race to find a protected class to be a part of to enhance your coercive rights over others.

In my judgment, the 303 Creative case was so important because it limited the power of the state to force people to do and say things of which they disapprove. This is a right that the state should never have. It is by its nature tyrannical, not just unfair as affirmative action is.

Unfairness is bad; tyranny is far worse.