Bench Memos

Arguments Separating Fashion Designers from other Artists Aren’t Worthy of the Runway

Freedom of conscience is now mainstream, as many in the fashion industry have raised objections to designing dresses for Melania and Ivanka Trump. In the wake of these “fashionable” objections (which have generally been cheered by the media), my colleagues and I at Alliance Defending Freedom have been discussing the no less serious crises of conscience faced by printers, graphic designers, filmmakers, cake artists, and other creative professionals who hold deep religious beliefs about marriage. All of these individuals are entitled to live by their convictions, as I’ve recently argued in the Washington Post.

Not surprisingly, some disagree with that. Steven Petrow has tried to make the case in the Post that refusing to dress the first lady isn’t like a cake artist who declines to create a custom cake celebrating a same-sex wedding. Claiming that there is “a false equivalency between the bakers and the dressmakers,” his analysis is deeply flawed.

Petrow’s first point is legal, insisting that the cake artist violates the law but that the fashion designer doesn’t. He says that the cake-maker discriminates based on sexual orientation, which is forbidden by law in some cities and states. But the fashion designers discriminate based on politics, and according to Petrow, “[p]olitical affiliation is not a protected class in any state.”

Petrow, however, overlooks that “political affiliation” is indeed a protected class in many places, including the District of Columbia and several large cities like Seattle. So, if Melania sought out a designer in the District and was turned away, that designer would face trouble under local law.

Petrow’s discussion is also unpersuasive because he fails to even consider constitutionally protected freedoms that belong to creative professionals like the cake artist, printer, graphic designer, and filmmaker. That “political affiliation” is included in many nondiscrimination laws shows just how far-reaching and constitutionally problematic those laws have become. Unmoored from their laudable origins and purposes, they now demand indefensible outcomes, like requiring a freelance writer who is an ardent Democrat to write materials praising Republican politicians or policies.

But this conflicts with our nation’s constitutional commitment to freedom of expression and conscience. That is why the Supreme Court has repeatedly concluded in cases like Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston and Boy Scouts of America v. Dale that nondiscrimination laws cannot override expressive and artistic liberties. It is also why, regardless of what some so-called nondiscrimination law might say, the Constitution forbids the government from forcing professionals to speak, promote, or create art for causes that they cannot in good conscience support. Because of these constitutional freedoms, a cake artist does not violate the law by declining to celebrate a same-sex marriage.

Petrow’s next argument also misses the mark. He claims that the fashion designers are motivated by “personal likes and dislikes,” which he believes is okay (apparently animus is acceptable), but that the cake artist unlawfully “refus[es] to provide services to an entire class of people.” Once again, he couldn’t be further from the truth.

Neither the cake artist nor any of the other conscientious professionals mentioned above refuse to serve gays and lesbians as a class. Rather, all of them serve LGBT citizens so long as they aren’t asked to promote or speak a message that celebrates an understanding of marriage at odds with their faith. So, if a gay customer wants brownies for a birthday party, the owner is happy to assist; but a custom cake celebrating a same-sex wedding is off the table. Drawing such a line does not reject “an entire class of people.”

Petrow’s unconvincing arguments show us that it’s time for those who applaud the fashion designers to recognize that another group of artists also deserve their support. Contrary arguments, no matter how they’re dressed up, aren’t worthy of the runway.

Jim Campbell is senior counsel with Alliance Defending Freedom, which represents NIFLA in its case pending before the Supreme Court.

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