On his Saturday CNN TV show, Michael Smerconish had as a guest Victoria Cobb, the Christian organization’s President, that was refused service by a Virginia restaurant. The host acknowledged the Restaurant was wrong, but he saw no difference between its action and the marriage website designer, Lori Smith, in 303 Creative LLC v. Elenis before the Supreme Court. He held that both the Restaurant and Smith broke the law.
This conclusion is a jolt coming from a lawyer. Even more shocking, his stance mirrors Supreme court justice Sonia Sottameyer. “This would be the first time in the court’s history,” Justice Sonia Sotomayor said in the 303 case oral, that it may rule that “a commercial business open to the public, serving the public, that it could refuse to serve a customer based on race, sex, religion or sexual orientation.”
Our anti-discrimination laws are rooted in the refusal to serve southern blacks at lunch counters. If your menu offers items for sale, you must not discriminate. It’s a simple contract, the Restaurant proffers, and you agree to pay the asked price. We do the vast majority of transactions this way. Refuse certain groups, and you’re breaking the law.
Failing to honor the Christian group’s reservation is prohibited. The Restaurant offered its menu and accommodations to all. The group agreed to pay. Nothing in the transaction required any further meeting of the minds.
However, the website designer’s case is different. In the April 3rd, 2015 post “We’re Confused by Indiana,” I tackled the difference between regular commercial transactions and those requiring an individual’s unique skills. What I wrote is still valid. We don’t compel a person to use special skills in collaboration with others. That would be involuntary servitude. A Moslem can’t force a Jewish artist to paint a picture denying the holocaust, and a Jew can’t compel a work mocking the Prophet by a Moslem.
While this should be evident to all, what is needed is simple tests so the likes of Smerconish and Sotomayer can tell the difference.
First, does the good or service exist? You go to Amazon to see if what you need is offered, and if it does at an agreeable price, you buy, and the transaction is complete. This requirement may sound odd, but you can only complete the transaction if it exists. The food and accommodation requested by the Christion group are available, but the wedding website needs to be.
Second, if it doesn’t exist, can it be without a person’s unique input in the future? In the wedding website case, the would-be purchasers acknowledge the designer’s special skills by not simply going elsewhere. To create something acceptable to both, the prospective buyers must provide their details and desires, and the creator must incorporate them. They, in short, must collaborate.
Rogers and Hammerstein worked well together, but what if they hated each other due to religious differences? Could the State compel them to work together? I doubt if it would be the “Sound of Music.” Maybe in China, but in America? That action isn’t a principle the Supreme court or anyone else should want to endorse.
Third, is the purchaser’s offer to pay in good faith? In other words, are the goods or services desired, or is the actual intent to use the courts to punish those thinking differently? Would those planning one of the most significant events in their lives trust their website, photos, or food to someone forced to serve them? If invited to that wedding, I, for one, am not going anywhere near the food. Anyone who saw the movie “The Maids” knows what can happen to baked goods when it’s prepared by those who have reason to dislike you.
The more sensible assumption is the reason behind the inquiry into the goods or services is to use the State to punish your foes. The courts shouldn’t have any part in this ruse.
Using these three tests, it’s easy to conclude that Metzger Bar in Virginia is guilty of discrimination. The demands on Lori Smith to collaborate on their wedding website are unreasonable and with ill intent. Therefore, she didn’t discriminate.
Would Michael Smerconish, Sonya Sotomayer, or anyone claiming the two cases are the same want to live in a country forcing you to perform for those who hate you?