No serious commentator believes that the current Supreme Court is going to rule against the web designer in the case that will be argued tomorrow, given its passion for protecting Christians. And, in fact, the designer has a reasonable argument; who wants to be compelled to express support for beliefs one finds abhorrent? The real question, however, is not the decision in this case; it is how far that decision can be stretched in the future.
The looming issue here is whether right-wing Christians will be permitted to refuse to serve blacks, or Jews, or other ethnic and religious minorities in violation of various civil rights laws based on sincerely felt, but bigoted, religious views. I suspect the Court will bend over backwards to make it clear that it is not endorsing that kind of discrimination, because to do otherwise would confirm the left’s worst fears about the Court and embarrass its reactionary friends, who repeatedly and ferociously insist they are not bigots. But how can the line be drawn to provide a reasonable limit to this precedent?
There are two obvious answers. One is to say that the vast majority of jobs and businesses don’t involve the exercise of First Amendment rights; the web designer is an idea creator, but a restaurant owner, for example, is not. The second is to draw a line between traditional religious views about gay rights, based on clear doctrine and historical experience, and racial questions The Court would have to concede that some Christian denominations have put racial discrimination at the heart of their doctrine, but it would undoubtedly say that those were aberrations that do not exist today.
Are those common sense distinctions viable in the long run? I have my doubts, but we’ll see.