March 22, 2022
Can a web designer be compelled to create content?
Courage is a peculiar thing. Meet Lorie Smith. She owns a web design business called 303 Creative. When you visit the site you will read her business philosophy.
As a Christian who believes that God gave me the creative gifts that are expressed through this business, I have always strived to honor Him in how I operate it. My primary objective is to design and create expressive content—script, graphics, websites, and other creative content—to convey the most compelling and effective message I can to promote my client’s purposes, goals, services, products, events, causes, or values. Because of my faith, however, I am selective about the messages that I create or promote – while I will serve anyone I am always careful to avoid communicating ideas or messages, or promoting events, products, services, or organizations, that are inconsistent with my religious beliefs.
It is obvious that she is devout. And she lives in Colorado, the same state that has twice tried to bend Jack Phillips to its will for refusing to bake cakes for gay weddings and trans events. Even though the Phillips case was thrown back to them by the Supreme Court because it was obvious that Phillips was singled out because of his Christian faith, the Colorado Civil Rights Commission seems to soldier on against religious freedom and the pursuit of happiness. What elevates Lorie Smith to the courage level is that she is the forefront of a significant shift in how religious people are taking on the secular culture. Instead of waiting for trouble, she invited it. Working with the Alliance Defending Freedom she sued the state of Colorado in federal court challenging the public accomodation law. In so doing, she could affirm her freedom to design websites as she chose. No one complained against her or filed a lawsuit against her.
The result was that after three years the federal court ruled against her. She had to design web sites for all comers, even if the content violated her deeply held beliefs. She set into motion the legal process that would once again bring to the forefront three elements of American law. First, the most obvious one, was religious freedom and its scope as it applies to individuals who work in the marketplace. Secondly, the freedom of speech that applies particularly to artists, where the creative skills of the individual are involved. This shows more than anything the intimate tie between the freedom of religion and the freedom of speech. Finally, the principle that we are endowed to have the freedom to pursue happiness, i.e. the right to have a livelihood. The effect of the Colorado Civil Rights Commission’s decision for Jack Phillips and the federal court's ruling on Lorie Smith is that they had no right to conduct business unless they forfeited their religious beliefs.
Most who read this would think that this should be a no-brainer. It obviously violates what this country is all about, does it? Yet it has entered into the web of uncertainty and ambiguity that has permeated our country since sexual orientation was added as a protective class in municipal and state law for public accomodations, as well as corporate policy. The Supreme Court returned the Phillips case to the Colorado Civil Rights Commission telling them to work out a mechanism that does not explicitly discriminate against Christians. But the Smith case has worked its way through the appeal process and the Supreme Court agreed to review the case in February on the broader grounds of freedom of speech. Ms. Smith is not a cake artist, but actually writing words. While the First Amendment protects artists and writers alike, the written word has a richer history in judicial precedent.
As an IT person I find the Smith case intriguing. Until Lorie came along, almost everyone who was prosecuted by the State for holding to their religious beliefs were connected to the wedding industry. Lorie expands the scope of this issue considerably. Web designers cover a lot of ground and the definition of “designer” can also be quite broad. Layouts, graphics and presentation is one thing. But subject matter is another. It is more than a technical process. It is “creative.” Whereas for a large business enterprise a web designer is part of the production process, an individual running a small proprietary venture is the soul of the business. If the US Forest Service lost one of its web designers, it hired another to replace that person. If Lorie is “fired,” the business ends.
This case is important to all web designers who run their own businesses. Don’t fool yourself into thinking this isn’t your problem because you may not be religious. You need to ask the question, “Do I have the freedom to deny work because it violates my conscience?” As anyone affiliated with the Canadian truck drivers or the debate over COVID vaccines can attest to, censorship and well-being are not just a concern of religious people uncomfortable with the so-called “gay lifestyle.”
Speech comes in two forms. First, it is what you say. Yet in reality, it is also what you don’t say. Lorie Smith is in court because of what she refuses to say. There is a story of the Green Grocer shared by Václav Havel, who owned a business in the dark days of Soviet-occupied Czechoslovakia. He lived a life of relative peace by putting up the latest slogans in his window. Stuff like “Workers of the world, unite!” But then one day he decided not to post signs in his window. “In this revolt the greengrocer steps out of living within the lie.” In not putting up a sign, he drew attention to himself. “By breaking the rules of the game, he has disrupted the game as such.”1
Speech is highly dynamic and fluid. Web “designers” and “content creators” are indistinguishable in many cases. They create the content as well as design the presentation. Is creating content to be second guessed by state officials? Yet a step further is to punish people on what they do not create, what they do not write. This is compelled speech.
Many people I run into don’t understand this whole religious thing. These folks are not devoutly religious and have constructed their lives around principles outside religious faith. So they are rather vexed as to why people would make a stand against homosexuals. Is it worth the cost? Be practical. Do what they ask and move on.
Unfortunately, history has something to teach them. It is interesting that included in the list of “confessions” of the Christian faith is one written in 1934. Most of the Christian confessions go back several centuries such as the Apostles Creed (c. 5th century), the Heidelberg Catechism (1563) and the Westminster Confession (1646). But the Barmen Declaration was a Christian response to the rise of Adolph Hitler. The writers posed these six theses:
The source of revelation is only the Word of God — Jesus Christ. Any other possible sources (earthly powers, for example) will not be accepted.
Jesus Christ is the only Lord of all aspects of personal life. There should be no other authority.
The message and order of the church should not be influenced by the current political convictions.
The church should not be ruled by a leader ("Führer"). There is no hierarchy in the church (Mt 20, 25f)
The state should not fulfill the task of the church and vice versa. State and church are both limited to their own business.
Therefore, the Barmen Declaration rejects (i) the subordination of the Church to the state (8.22–3) and (ii) the subordination of the Word and Spirit to the Church.
Elaborating on item #3, the declaration goes on to state:
We reject the false doctrine that the Church could have permission to hand over the form of its message and of its order to … the vicissitudes of the prevailing ideological and political convictions of the day.2
As you can see, these statements can provide some insights into why people like Lorie Smith or Jack Phillips are fighting for their rights as Americans. They maintain principles that they believe no government should violate. Ms. Smith is in a much more comfortable position because the only thing she stands to lose is her chosen livelihood. If memory serves me correctly, Martin Niemöller was the only resident German signer who survived the war. The rest of the resident signers of the Barmen Declaration perished. Pastors and believers who stood by this declaration were defrocked, marginalized, and driven underground.
People would respond saying, “But those were the Nazis!”
And my response is “And?”
We need to pause and reflect where we are going with the law in regards to providing special protection based on sexual orientation, yet applying the standard in the same way as if someone was born black or brown. Most of us understand the issue with racial and ethnic discrimination. Yet when we get into “lifestyle” issues, it gets complicated, especially with an issue such as sexual orientation.
The common element on all the cases that have threaded their way through the legal system revolve around weddings. It is interesting that all the cases I have studied involve individuals who have never personally attacked a homosexual, expressing a desire to serve everyone. But they all drew the line when it came to participating in an activity they considered morally objectionable. And that was the issue.
The Supreme Court has a great opportunity to solve this vexing issue. As was predicted in the 1990’s, the introduction of sexual orientation as a protective class would generate a conflict with other constitutionally protected standards such as the freedom of religion, speech and press. It is important for the reader to understand that sexual orientation is not written into the U.S. Constitution. It is an implied protection in which local municipalities and state governments have the freedom to extend and define. What the Supreme Court said, in plain English, was that the state of Colorado had created this problem, they needed to fix it. But by doing so, the Supreme Court allowed the problem to fester and Phillips was once again sued for not creating a custom cake celebrating a gender transition.
But then came Lorie Smith and her case is a bit more complicated yet easier to address in regards to the U.S. Constitution. This is an opportunity to state that no one can be compelled to write or create anything that would violate their conscience, much less than explicitly stated moral standards based on one’s faith. It is a ruling that applies both ways. The ruling on this case should be quite interesting to follow.
“In Another Test of Religious Liberty for Wedding Vendors, Supreme Court Will Hear Website Designer Case”, The American Spectator, by Tom Raabe, February 26, 2022
“Colorado Web Designer Lorie Smith takes Free Speech Case to the Supreme Court “, Alliance Defending Freedom, by Maureen Collins, February 22, 2022
Barmen Declaration, United Church of Christ, I like this one because the translation is a bit easier to read (the Barmen Declaration was originally written in German).
Live Not by Lives, Rod Dreher, Sentinel, 2020
Photo of Lorie Smith granted by permission from Alliance Defending Freedom.
1Live Not By Lies, Rod Dreher, Sentinel, 2020, pp. 97-99. Václav Havel was the last president of Czechoslovakia and the first president of the Czech Republic, most particularly known for his opposition to the Soviet-backed regime.
By Eric Niewoehner
© Copyright 2022 to Eric Niewoehner.
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