SO CREATE “PLUG-AND-PLAY” WEBSITES, LORIE!

So now artists must not only create for whom the government says, but they must also create WHAT the government says?

The problem with these cases - this one and the bakeshop - is that those opposing discrimination really don't accept that the artist is an artist, with all of the complex facets of that profession. Imagine that Ms. Smith decided to create websites for a living precisely because she believes marriage between a man and a woman is a sacrament that moves her to express joy through artistic creation. Such a person would no more create a plug and play website than Picasso would make a paint-by-numbers product where you could supply your own colors. But some other artist might indeed do just that, just as other web designers will create websites in support of same-sex couples. That's what makes artists unique. They follow their own muses.

According to the Scotus Blog, Colorado law even lets you sprinkle bible verses that you think to denounce same-sex relationships throughout the websites.

So, if this case is decided against Ms. Smith, she can create a plug-and-play website that shows a bride and a groom and Bible verses that praise the union of a man and a woman (no need for anti-gay stuff in a celebration of hetero love). How long before that messaging is attacked as discriminatory, given its obvious intent to make gay couples not want it?

Actually, I think the Circuit Court almost got this case right. The court found that, insofar as the statute affected Ms. Smith's first amendment interests, it is subject to "strict scrutiny," and is constitutional only if Ms. Smith's refusal to serve gay couples impaired the market for the services they sought. In that regard, the court found that by removing herself from the market, Ms. Smith had impaired the market, precisely because she was a unique artist. I suspect Scotus may find otherwise.

Meanwhile, if we concede that custom services are protected against this statute but plug-and-play "products" are not, where does that leave this case? Can Ms. Smith amend her complaint to ask only that the law be declared unconstitutional as applied to custom services? (This is one of the reasons courts wait for cases to be "ripe" for adjudication. How can you sue to overturn a statute that may be constitutional as applied to some of your work but not all of your work, but has not yet been applied to any of your work?)