I listened to the Oral Arguments for the 303 Creative LLC vs Elenis Supreme Court case.
This is the case where a Web Designer was asserting her right not to create a wedding announcement web site for a same sex couple because it would compel speech from her that was against her beliefs.
My first take is that the Supreme Court should have never taken up this case on a pre-enforcement basis. There was no actual case to be heard, so all parties had to deal with hypotheticals upon hypotheticals, and, meanwhile, the plaintiff had yet to be asked to provide the service that her complaint was in reference to.
My second take is that the attorneys on both sides were pretty bad, and not just because the definition of 'public accommodations' is exceedingly grey when it comes to creative services and 'speech'.
Each party seemed to have a very hard time holding a clear line during questioning. So, for example, if an opposite sex couple asks for a wedding announcement web site that has nothing more than their names, pictures, the date and location of the event, and links to the registry and hotel, and a same sex couple asks for the exact same site with an update to the underlying information, i.e. such that we can infer that 303 would not be creating any new 'speech', 303 asserts that the same 'speech' applied to the same sex couple creates a message that they object to, while the government asserts that 303 is objecting based on the characteristics of the customer, which is fatal to the case in this example, because sexual orientation is a protected class.
The problem here is that hypotheticals can go to the kind of extremes that everyone can agree to. Can an African American Web Designer be compelled to create a rally site for the KKK? Can a Trans Web Designer be compelled to create an anti-trans site for a Religious organization? If you answer 'no' to these questions, then even if the counter-examples are abhorrent to you, the basis is the same: Individuals should not be compelled create 'speech' that is not in alignment with their beliefs.
But where does this lead? Will Businesses pre-screen customers to make sure that their services are only used in a way that conforms with their beliefs, and will they have a legitimate case for walking away mid-stream if they discover that this will not be the case? Can you imagine a wedding band that arrives to discover they are performing for a same sex (or even opposite sex) couple and simply turning around because they do not sanction the marriage?
That is not what Business is about. If a Business is going to claim that it has the artistic degrees of freedom to create 'speech' then it should pursue its 'art' with excellence, regardless of the customer. That means the best possible wedding announcement web site for a same sex couple, and the most compelling rally site for the KKK. Money is exchanged, services are delivered, live and let live. Even this is not so great, especially for the latter example, but it is better than the alternative, IMHO.
