A “Creative” Loophole

By Ken Burrows

Jack Phillips, owner of Masterpiece Cakeshop, and Lorie Smith, owner of 303 Creative, have thrust Colorado prominently into the news — and into the courts as well — due to their shared refusal to serve LGBTQ customers. The two business proprietors say the lifestyles of such customers violate their religious beliefs. More specifically, they claim a right to decline offering “creative” services (cake decorating; wedding website design) to such clients because, they contend, this is equivalent to “speech” for them and they cannot be forced to speak in a way that contradicts their faith.

Their legal representatives, along with like-thinking sympathizers, have latched onto this rationale, arguing that exemptions to Colorado’s nondiscrimination law should be allowed for business owners engaged in “creative expression.” But many critics see this as a sly legal loophole to get around the fact that businesses in most circumstances are not entitled to a religion-based exemption to Colorado’s equal protection law. Phillips himself has said he would sell his generic bakery products to gays and lesbians but just refuses to perform and sell them any LGBTQ-themed creativity. He demands that loophole.

So is “creative expression” a reasonable justification to allow religion-based discrimination? On that basis, should Phillips and Smith have a legal right to do what would otherwise be illegal, to in effect post a sign on their business telling LGBTQ customers: We don’t serve your kind here.

Before answering, consider the fact that in creating a cake or a website, these artisans are not forced to agree with the lifestyle of the customer. They are not required to endorse the theme of their creativity. They simply design a service or product in which the lifestyle of someone else is featured or celebrated. It is not as if they are personally blessing a gay marriage. In fact, if there were no Masterpiece Cakeshop or 303 Creative controversy in the public eye, virtually no one would care who made the cake or website, and would care even less what the crafters’ private moral views are.

Compare it to an architect who designs churches. Does creating such a design automatically mean that the architect embraces the beliefs of that church? Of course not. Should a Muslim architect be legally allowed a business policy of refusing to design any Catholic churches simply because his or her religious beliefs conflict with Catholicism? We should hope not.

So in this issue we have two competing rights, but they are not of equal impact. Phillips and Smith want what might be called a super-right. They want to have their creative work absolutely and completely align with their religious beliefs even though this would trump the democratically legislated right of all citizens to be treated equally. When that happens, the religious absolutism of the few prevails over the civic rights of the many.

As the Supreme Court wrote thirty-three years ago in Employment Division v. Smith, with the religious conservative Antonin Scalia agreeing: “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law,” and religious exemptions cannot “in effect permit every citizen to become a law unto himself.”

That should still hold true today. This “creative expression” loophole that evades the guarantee of equal treatment should be closed.

Published in the April 5, 2023 issue of Sixty35 News with the quotation below.

Equal rights for all, special privileges for none."

Thomas Jefferson