On Monday the Supreme Court heard oral arguments in the case of 303 Creative vs. Elenis, where a website designer who is an Evangelical Christian sued to invalidate a Colorado law banning discrimination against would-be customers on the basis of gender, orientation, or other characteristics such as race or religion.
It is unusual that this case has even reached the Supreme Court because there is no actual injury and no facts in evidence. The owner of 303 Creative, Lorie Smith, has neither designed nor declined to design a website for a same sex wedding and has not been accused of or penalized for violating the Colorado nondiscrimination law. In fact, she has not designed websites for any weddings at all; she mostly does work for political candidates, dog breeders, contractors and houses of worship. But apparently in cases which involve free speech, it is possible to file suit before suffering an actual injury because fear of being charged with violating the law can have a chilling impact on future speech.
I suspect that for most people in our Kehila, Lorie Smith is a fairly unsympathetic plaintiff because she is essentially suing for the right to discriminate against gays. She is being represented by the “Alliance Defending Freedom” , a conservative evangelical group which has been active in opposing laws protecting LGBT rights, in seeking to ban abortion, and to promote prayer in public schools. The ADF has a history of shopping for plaintiffs in order to present cases it wishes to file, and apparently Lorie Smith’s case is a result of such plaintiff shopping.
But the question of when commercial activity becomes “expressive conduct” is not always so easy to determine. Imagine a kosher bakery owned by strictly Orthodox Jews which does custom cakes for various special occasions. Now imagine a “Messianic Jewish” congregation, in other words, a congregation of people who claim to be practicing Judaism but venerate Jesus, whom they call Yeshua, as the messiah. If someone from this Messianic Jewish congregation goes into the bakery to purchase ready made items for a celebration at their congregation, it is of course reasonable to require that the kosher bakery allow the congregation to purchase those products. But now imagine that the Messianic congregation wants to have a custom made cake for its Christmas celebration and wants the cake decorator from the bakery to decorate it with crosses embedded in Stars of David and write on it “Happy Birthday to Yeshua ha-Mashiach”. Should it be legal for the bakery to decline that order? If so, what is the difference between a kosher bakery declining to produce a cake celebrating “Messianic Judaism” and an evangelical Christian web designer declining to do a website for a same sex wedding? I submit to you that this issue is more complicated than it might seem at first glance.
As a reminder, I am having drop-in hours on Thursday afternoon from 2 to 4 at the shul. You do not need to make an appointment -- that would negate the whole point of drop-in hours -- but I’d urge you to check and make sure I am there regardless as sometimes there are unavoidable pastoral or other emergencies which might take me away from the building.
As always, if I can do anything for you or you need to talk, please contact me at email@example.com or 301-977-0768 rather than through the synagogue office. I am happy to meet you at the synagogue by appointment. I have been spending more time in the synagogue recently but if you want to speak with me it’s best to make an appointment rather than assuming I will be there when you stop by.
Rabbi Charles L. Arian