The recent Supreme Court decision that a wedding website designer in Colorado is free to refuse to work for a same-sex couple has generally been construed as yet another example of the court’s retreat from protecting the rights of LGBTQ+ people, as well as those of other protected classes, including racial minorities and people who are differently abled. No doubt it is. As Justice Sonia Sotomayor says in her blistering dissent:
"Today is a sad day in American constitutional law and in the lives of LGBT people. The Supreme Court of the United States declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class. The Court does so for the first time in its history. By issuing this new license to discriminate in a case brought by a company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status. In this way, the decision itself inflicts a kind of stigmatic harm, on top of any harm caused by denials of service. The opinion of the Court is, quite literally, a notice that reads: 'Some services may be denied to same-sex couples.'"
Yet there is another side to this case that had some in the design world queasy about either possible outcome before the verdict was reached. To those supporting the designer, Lorie Smith, who presented herself as a graphic design professional selling her services, the question was whether such a person, while performing work for hire, was still protected by the rights of free speech guaranteed in the Constitution. As Justice Neil Gorsuch formulated in the opinion of the court’s majority:
"Applying these principles to the parties’ stipulated facts, the Court agrees with the Tenth Circuit that the wedding websites Ms. Smith seeks to create qualify as pure speech protected by the First Amendment under this Court’s precedents. Ms. Smith’s websites will express and communicate ideas—namely, those that 'celebrate and promote the couple’s wedding and unique love story' and those that 'celebrat[e] and promot[e]' what Ms. Smith understands to be a marriage. Speech conveyed over the internet, like all other manner of speech, qualifies for the First Amendment’s protections. And the Court agrees with the Tenth Circuit that the wedding websites Ms. Smith seeks to create involve her speech, a conclusion supported by the parties’ stipulations, including that Ms. Smith intends to produce a final story for each couple using her own words and original artwork. While Ms. Smith’s speech may combine with the couple’s in a final product, an individual 'does not forfeit constitutional protection simply by combining multifarious voices' in a single communication … "
"The State stresses that Ms. Smith offers her speech for pay and does so through 303 Creative LLC, a company in which she is 'the sole member-owner.' But many of the world’s great works of literature and art were created with an expectation of compensation. And speakers do not shed their First Amendment protections by employing the corporate form to disseminate their speech."
Thus the court positioned itself as protecting those who perform works for hire and, at the same time, see themselves as artists. It is not difficult to find in that definition the way many architects think of themselves: They both sign off on The American Institute of Architects’ notion that they are performing a service to clients, first and foremost, and see their work as artistic or, at the very least, creative. Should architects thus heave a sigh of relief even as those of us in the LGBTQ+ community feel attacked and excluded by the court’s decision?
The reality is more subtle, although quite complicated. As Sotomayor points out:
"The First Amendment does not entitle petitioners to a special exemption from a state law that simply requires them to serve all members of the public on equal terms. Such a law does not directly regulate petitioners’ speech at all, and petitioners may not escape the law by claiming an expressive interest in discrimination. The First Amendment likewise does not exempt petitioners from the law’s prohibition on posting a notice that they will deny goods or services based on sexual orientation."
As she goes on to state (and this is the argument at the core of her dissent):
"The company could, for example, offer only wedding websites with biblical quotations describing marriage as between one man and one woman (Just as it could offer only t-shirts with such quotations.) The company could also refuse to include the words 'Love is Love' if it would not provide those words to any customer. All the company has to do is offer its services without regard to customers’ protected characteristics. Any effect on the company’s speech is therefore 'incidental' to the State’s content-neutral regulation of conduct."
How can we interpret these examples in the case of architecture? What Sotomayor seems to be saying is that an architect could, on the one hand, offer to design only churches or religious structures, or other buildings informed by what they believe is biblical scripture, and not run afoul of the law. If they advertised themselves as offering general architecture services, they could not refuse to design a LGBTQ+ community center; however, they could refuse to do anything in the design that would represent or champion the rights of that community, either through graphics or, I assume, such design elements as gender-neutral bathrooms.
For all practical purposes, in other words, the hypothetical Christian-value (or Muslim or Jewish, for that matter) architecture firm would have to take the commission, but then could act in a manner that would get them fired from the job before long because they would not want to design (express) certain elements the client might request. The question then would become whether they were acting in good faith under Sotomayor’s notion of freedom accorded to all members of our society to receive goods and services advertised to all that are of the same quality and nature. Where, in other words, do design elements become free speech?
To reverse the argument: Could an architect design separate entrances for white people and Black people because they believe races should not mix? Or could that same architect provide separate facilities for men and women, including separate entrances? The latter example is not so hypothetical: Many Orthodox Jewish synagogues, as well as that community’s schools and facilities, have provisions to separate the sexes. Of course, the architect could design such provisions; they would only have to live with their own conscience. If they were sued by a woman who felt discriminated against, they could have recourse to the fact that they were performing work for hire and following the client’s wishes.
But could they also either refuse to take the commission, or take it and then not fulfill the client’s demands on principle and then resist being fired? The answer to the latter question (I think) is simple: Yes, they can, because neither racial bigots nor religious extremists are protected classes under U.S. law. The Supreme Court’s majority decision was careful to leave a discussion of those protections aside or, rather, to say that they did not consider them relevant in this case. The same could be said about architects refusing, as many now do, to design prisons because they believe the nature of our penal system is innately discriminatory, demeaning, and violent.
In other words, the Supreme Court decision is an attack only on the ability of those who are members of protected classes to obtain design services from those publicly advertising themselves as providing such (design) work for hire for everyone. As Sotomayor points out, previous court decisions leading up to this one had not impinged on the creative or artistic rights of designers, only on their right to refuse service to anyone, in the case that they presented themselves as design (or other kinds of) professionals. If Ms. Smith had taken the commission and then refused to design an image of the two same sex individuals on the website, they would, per Sotomayor, have been protected under existing precedents.
That brings us back to the narrower question: Are there aspects of architecture that, in their expressive or creative form, are a message that is more intrinsic to design than writing a message on a wedding website? Certainly, architecture has a symbolic content and, many of us believe, also a semiotic one. Classical architecture often represents state or capital power and is allied with historical European values. Steeples stand for churches and, to stretch the argument, skyscrapers can often evoke male power quite directly. An architect can choose not to design in any style or with any feature they deem to be contrary to their beliefs and can add any expression they believe is honest, true, and important to their creative work. They can also refuse commissions. Until the recent Supreme Court decision, they just could not advertise their goods to all and then not accept clients who are of a particular class, sexual orientation, ethnicity, or ability, regardless of whether those potential payors might demand different signs, symbols, or elements. Now they can. As Sotomayor concludes, taking the argument into the harsh world of commerce:
"The unattractive lesson of the majority opinion is this: What’s mine is mine, and what’s yours is yours. The lesson of the history of public accommodations laws is altogether different. It is that in a free and democratic society, there can be no social castes. And for that to be true, it must be true in the public market. For the 'promise of freedom' is an empty one if the Government is 'powerless to assure that a dollar in the hands of [one person] will purchase the same thing as a dollar in the hands of a[nother].'"
The views and conclusions from this author are not necessarily those of ARCHITECT magazine or of The American Institute of Architects.