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Tuesday, May 3, 2022

OPINION:

Let’s say you’re a website designer, and you’re committed to your faith. That faith is clear that same-sex marriages, or relationships, are immoral. Now let’s say a customer asks you to design a website for his same-sex marriage. You decline to do this because it’s against your faith. Are you wrong?

This is the issue that the Supreme Court will be hearing during its next term, which begins in October. And it will affect many small businesses around the country.


The case involves an evangelical Christian in Colorado who refused to do work for a customer because of her religious beliefs. It follows a similar case in Colorado in 2018 where the Supreme Court backed a Denver bakery owner who refused to make a cake for a couple’s same-sex wedding for religious reasons. According to Reuters, the website designer’s case “gives the justices an opportunity to answer a question that has been raised in other disputes including the baker case but never definitively resolved: can people refuse service to customers in violation of public accommodation laws based on the idea that fulfilling a creative act such as designing a website or baking a cake is a form of free speech under the U.S. Constitution’s First Amendment.”

At first, you would think this is an easy question to answer. Colorado — like 21 other states — has anti-discrimination laws in place that bar anyone from refusing “goods, services, facilities, privileges, advantages or accommodations” based on sexual orientation, age, race, gender and religion.

But religious groups say this law silences free speech. And — as evidenced by the baker case — the Supreme Court has sided with them in the past. The website designer’s attorneys say that any state action punishing her for refusing to design websites for gay weddings violates her right to religious expression and her free speech rights. 

So should the baker, the website 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, at first, would say no. A business owner shouldn’t have to do business with people he doesn’t want to do business with. And frankly, it happens more often than you think — even with big corporate brands.

Trendy bars and restaurants surreptitiously deny access to certain customers that don’t have a certain “look.” Retail stores throw homeless people out of their establishments although no laws are being broken. Facebook doesn’t let gun shops or cannabis makers advertise even though their products are perfectly legal. Condo associations deny new members that may have committed crimes in the past or who lead a lifestyle that they consider to be “unacceptable.”

Or the chef who researches diners online and cancels reservations if he sees “misbehavior.” I discriminate in my small business by sometimes pushing away bad clients merely because they created more headaches than profits. 

Aren’t these examples of discrimination similar to the Colorado website designer? Where do you draw the line?

Morality aside and even as a free speech advocate I still think it’s infinitely dumb to turn away work from customers just because they’re gay, sell guns or who have committed a crime in the past. A person’s lifestyle may be against your religious principles, but a business needs customers to sustain itself and its employees. I don’t know how busy the Colorado website designer is, but I’m sure that every client counts to her. I know that my business isn’t so gloriously profitable that I would have the inclination to deny potential revenues just 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’re going to do, even if it’s dumb for their business.

So based on this you’d think that I’d be fully in support of the small business owner who designs websites and turns away gay customers based on her religious beliefs. But I’m not. Why? Because regardless of what the law says — or what the Supreme Court decides — one important fact remains and it’s this: I’m Jewish.

Being Jewish, I think to myself what if businesses were allowed to not serve me because they don’t like Jewish people? Or that the Jewish faith is unacceptable to them? It’s easy for me to find empathy with the Colorado website designer when the issue only applies to gay people because I’m not gay. But what if it hits home? Make it more personal and suddenly things don’t appear 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 “free speech” issue 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 reprehensible.

So no, I’m not in support of the Colorado website designer. Because, in the end, 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 then so be it. But if instead of working for someone else, you’re going to open up a business on Main Street, or as an Amazon shop or in an industrial park, you’re responsible for your customers, regardless of who they are. You should be required to leave your personal beliefs at home and serve whoever wants to buy your products.

• Gene Marks is a CPA and owner of The Marks Group, a technology and financial management consulting firm specializing in small- and medium-sized companies.


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