One of the most challenging aspects of democracy is competing rights, a conflict that was highlighted in the 303 Creative case that the Supreme Court ruled on earlier this month. A local company, 303 Creative stated that it refused to create websites for same-sex marriages, arguing it violated its freedom of expression, that websites were creative expression, and that Lorie Smith, its graphic web designer, held religious beliefs that did not support same-sex marriage.
I’m very tuned into freedom of religion as I always consider how the Jewish community can be impacted. In Europe, fundamental Jewish rituals are banned in some countries and threatened in others. In Switzerland, where I lived, shechitah is forbidden due to an anti-Semitic public referendum dating back to 1894. When Jews are forced to import meat from neighboring countries, they are reminded that they and their religion are not fully a part of the local fabric.
Yet, I cannot support Lorie Smith in her case, most fundamentally because in my view she generated this case for the sole purpose of taking it to the Supreme Court. She wanted this conflict. Her business has not created a single marriage website, then or now, nor has it been asked to create one for a homosexual marriage (though she falsely claimed otherwise). For me, it makes her case a sham, intended to add fuel to corrosive culture wars.
It makes her case markedly different from the Jack Phillips Masterpiece bakery case for two reasons: Phillips did not seek out conflict, it was potential customers knowing Phillips’ stand who sought to litigate; and Phillips’ business pre-dated the Obergefell decision, before the legal definition of marriage in this country included same-sex unions.
I am a staunch defender of all First Amendment rights, but I’m also a believer in the law of the land. Phillips, in my book, can make an argument for being “grandfathered” in. But Smith was going out of her way to say that she would not support existing law as decided in Obergefell. That the Court upheld her position is a slippery slope that could open the door to all kinds of violations of public accommodation.
Also a problem for me: frivolous lawsuits, such as Smith’s and some of those brought against Phillips. As a society we’re losing the ability to live and let live, instead seeking out conflict to score points. I don’t see how we grow from that. It seems to me that approach is sowing division, not healing it.
Shana Goldberg may be reached at [email protected]
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