It's insane.
David French, in The Atlantic:
But though the state can demand that businesses provide goods and services to all comers without regard to race, sex, sexual orientation, and other protected categories, it cannot demand that businesses or individuals engage in speech proclaiming messages that they oppose, and, as Smith argues, designing websites is a form of speech.
Programming really isn't speech. Source code isn't written for humans. It's written for computers to tell them the steps to follow to perform tasks for humans. It's not a conversation a programmer has with another person. With the exception of teaching programmers how to write it, humans generally only read source code to make sure it's telling the computer to do the right thing; once that's sorted out, humans are generally very happy to never look at the source code again.
Note that French is agreeing that programming is speech.
Then the whole thing gets worse in a couple of ways.
But here’s where 303 Creative gets truly strange. The Tenth Circuit Court of Appeals held that Smith was engaging in “pure speech” and that Colorado was compelling her speech, but it ruled for Colorado anyway. The reasoning in the majority opinion was extraordinary.
“This case does not present a competitive market,” the court said. “Rather, due to the unique nature of Appellants’ services, this case is more similar to a monopoly. The product at issue is not merely ‘custom-made wedding websites,’ but rather ‘custom-made wedding websites of the same quality and nature as those made by Appellants.’ In that market, only Appellants exist.”
Thus, because Smith possessed a monopoly over her own services, the state had a heightened interest in ensuring access to her work.
A monopoly over her own services? Shouldn't the FTC step in and break her up, for the good of the marketplace?
Become a monopoly! $6.48 in paperback. Such a high barrier to entry!
But French is being serious here. He approves of this nonsense. Because he is a homophobic nutbag, his take on this is:
“If rights of conscience attach to corporations worth trillions, shouldn’t they also attach to a single artist whose alleged ‘monopoly’ is merely in the sweat of her own brow?”
So the logic is:
Given: programming is speech
Given: website designers are artists
Therefore: web design is not a competitive market
Therefore: website designers are individual monopolists
Therefore: because large corporations can have morals [!!], these micro-monopolies should be allowed to express their morals through discrimination.
QED.
Remarkable, the lengths some people will go just to justify their unexamined fear of other people.
at some point, this is gonna cut two ways, if it hasn’t already.
wait and see what happens when somebody refuses to provide services to a christian and/or MAGA because they don’t approve of their point of view.
I had thought I understood that 303 Creative did not actually code individual web sites, but instead offered a selection of pre-coded website templates as their products.
Thus there could never be a request for them to “create a web site for an LGBTQ customer”, because 303 C does not create web sites, and the personalization that might result in their template being used to support or condone LGBTQ persons would be done by the imagined customer, not by 303 C.
Further, no LGBTQ person has ever attempted to purchase their product.
So their actual beef is that they want to reserve the right to refuse to sell a publicly-offered non-custom product to some customers, customers who are in a protected class. And their entire case is a hypothetical.
Do I have that wrong?
Nope that’s exactly as I understand it too.
I’m no lawyer, but it seems crazy to get a case all the way to SCOTUS where you haven’t actually suffered any negative consequences.
It’s all such a scam.
As to cutting both ways already: https://www.washingtonpost.com/food/2022/12/06/metzger-restaurant-family-foundation/
As to nobody having been harmed, see “Ripeness”: https://en.wikipedia.org/wiki/Ripeness
I’m hoping that the SCOTUS actually addresses the ripeness issue. I’ve always been a bit ambivalent about doing business with people who you don’t like (excluding overturning Jim Crow culture). I get it, but I mean – it’s a cake. It’s a wedding website. There are a gazillion providers. And there is retaliation, as here. I’m not making a cake for a Republican though, not that I make cake.
Quibble:
“Source code isn’t written for humans. It’s written for computers to tell them the steps to follow to perform tasks for humans. It’s not a conversation a programmer has with another person. With the exception of teaching programmers how to write it, humans generally only read source code to make sure it’s telling the computer to do the right thing; once that’s sorted out, humans are generally very happy to never look at the source code again.”
As a long-time professional programmer… this isn’t right. One of the things we try to teach people in our organization is that code will be read by humans many more times than it is written, so it is imperative to write it in a way that is comprehensible to humans, even at the expense of machine efficiency. It is very much a conversation with the next person to come along, and there is always such a person, even if it’s just me again in six months or six years.