Let’s say you’re a website designer and you’re committed to your faith. This faith is clear that same-sex marriages or relationships are immoral. Now suppose a client asks you to design a website for his gay marriage. You refuse to do it because it’s against your faith. Are you wrong?
That’s the question the Supreme Court will hear during its next term, which begins in October. And it will affect many small businesses across the country.
The case involves an evangelical Christian in Colorado who refused to work for a client because of her religious beliefs. This follows a similar case in Colorado in 2018 where the Supreme Court upheld a Denver bakery owner who refused to bake a cake for a couple’s same-sex wedding on religious grounds. According to Reuters, the website designer’s case “gives judges an opportunity to answer a question that has been raised in other litigation, including the baker’s case, but never definitively resolved: Can people- they refuse to serve customers in violation of public accommodation laws based on the idea that performing a creative act such as designing a website or baking a cake is a form freedom of speech under the First Amendment to the US Constitution.
At first, you might think this is an easy question to answer. Colorado – like 21 other states – has anti-discrimination laws in place that prohibit anyone from denying “goods, services, facilities, privileges, benefits, or accommodations” based on sexual orientation, age, race, sex and religion.
But religious groups say the law silences free speech. And – as evidenced by the Baker case – the Supreme Court has sided with them in the past. Lawyers for the website creator say any state action punishing her for refusing to design websites for same-sex marriages violates her right to religious expression and her free speech rights.
So should the baker, web designer, or any small business be required by the federal government to provide their services to any customer, regardless of their religious beliefs?
As a small business owner and free speech advocate, I would say no first. A business owner shouldn’t have to deal with people they don’t want to do business with. And frankly, it happens more often than you might think, even with big corporate brands.
Trendy bars and restaurants surreptitiously refuse access to certain customers who do not have a certain “look”. Retail stores evict homeless people from their establishments despite no laws being broken. Facebook doesn’t let gunsmiths or cannabis manufacturers advertise even though their products are perfectly legal. Condo corporations turn away new members who may have committed crimes in the past or lead a lifestyle they consider “unacceptable.”
Or the chef who researches customers online and cancels reservations if he sees “misconduct.” I discriminate in my small business by sometimes pushing away bad customers just because they create more headaches than profits.
Aren’t these examples of discrimination similar to the Colorado web designer? Where do you draw the line?
Morality aside and even as an advocate for free speech, I still think it is infinitely stupid to refuse work to clients simply because they are gay, sell guns or have committed a crime. in the past. A person’s lifestyle may be contrary to your religious principles, but a business needs customers to support itself and its employees. I don’t know how busy the web designer from Colorado is, but I’m sure every client matters to her. I know that my business is not so gloriously profitable that I would tend to turn down potential earnings simply because of a person’s lifestyle. But again, as a free speech advocate, I have to respect that people are going to do what they are going to do, even if it’s stupid for their business.
So based on that, you would think I would fully support the owner of a small business who designs websites and turns away gay customers because of her religious beliefs. But I am not. Why? Because no matter what the law says — or what The Supreme Court decides — one important fact remains and it is this: I am a Jew.
Being Jewish, I think to myself, what if companies were allowed not to serve me because they don’t like Jews? Or that the Jewish faith is unacceptable to them? It’s easy for me to find empathy with the designer of the Colorado website when the issue only applies to gay people because I’m not gay. But what if he hits home? Make it more personal and suddenly things don’t seem the same. Maybe the business owner doesn’t want to serve black people, white people, bald people, or people who voted for Donald Trump. When the issue of “free speech” becomes more specific, and when it affects the group you belong to – and we all belong to some kind of group – then it suddenly becomes more personal, and therefore more objectionable.
So no, I am not in favor of the web designer from Colorado. Because, ultimately, a small business is in the public domain. If the fact that I’m gay or Jewish or a Trump supporter is inconsistent with your personal religious beliefs, so be it. But if instead of working for someone else, you’re going to open a business on Main Street, or as an Amazon store or in an industrial park, you’re responsible for your customers, whoever they are. You should be required to leave your personal beliefs at home and serve anyone who wants to buy your products.
• Gene Marks is CPA and owner of The Marks Group, a technology and financial management consulting firm specializing in small and medium-sized businesses.