Comment: The word ‘art’ isn’t a permit to discriminate

Lawyers for a website designer who won’t do LGBTQ weddings twisted the meaning of a 2017 column.

By Robin Givhan / The Washington Post

A Colorado marketing and graphic design entrepreneur, Lorie Smith, would like to expand into the fizzy and fraught business of wedding websites where engaged couples can tell the story of their relationship, provide guests with travel and hotel details, offer links to their gift registry and have a central location to post all manner of logistical information. What Smith doesn’t want to do is make wedding websites for same-sex couples because she has a religious objection to such marriages. Her objection creates an obstacle to her expansion dreams because Colorado law prohibits businesses from discriminating based on gender and sexual identity. A business owner can’t refuse service to customers because they’re LGBTQ. And so Smith has taken her case to the Supreme Court where oral arguments were heard Monday.

To support her case, her legal team referenced a column I wrote in 2017. Smith is likening her refusal of same-sex couples to American fashion designers’ boycott of first lady Melania Trump. Both cases, Smith believes, are examples of artists owning their own voice. They are about having the freedom to speak or not speak. The state can’t compel a person to endorse something they do not support.

This is not what I had in mind when writing that column.

Like a lot of Supreme Court cases, Smith’s is both straightforward and complicated. This one is rooted in a hypothetical. No same-sex couple has asked Smith to create a wedding website. This case is aimed at giving Smith the right to discriminate at some point in the future. It’s looking ahead to allow for a future shame.

From Smith’s perspective, her company 303 Creative isn’t trying to discriminate against gay people;- only against their weddings, which also means their love, their creation of family. She doesn’t see herself refusing them service in the manner of a restaurateur who refuses to seat Black people or a sports club that won’t allow women. That’s because she doesn’t define herself as a merchant selling a product but as an artist crafting a message. “A web designer is the painter of the information age,” reads the brief.

Smith argues that she’s not trafficking in generic widgets but in a form of personal expression for hire. She’s telling her truth in the form of bytes and algorithms. Her websites are an expression of her politics, her spirituality, her inner musings. “As a Christian who believes that God gave me the creative gifts that are expressed through this business, I have always strived to honor Him in how I operate it,” reads her company’s origin story.

Fashion designers also view their work as an expression of their beliefs, as a form of protest and, in some cases, passionate advocacy. “In the same way that a poet’s words or a musician’s lyrics are a deeply personal reflection of the person who wrote them, a fashion designer’s work can be equally as intimate. In many ways, it’s why we are drawn to them,” I wrote. “We feel a one-to-one connection.”

While designers may not embroider an actual political treatise onto a frock, they tell stories about sustainability, culture, gender and status through fabric choice, color and silhouette. And, in some cases, philosophical exhortations actually are writ large, as with the “Tax the rich” evening gown that designer Aurora James created for Rep. Alexandria Ocasio-Cortez, D-N.Y., to wear the Met Gala in 2021.

While some American designers separated the role of first lady from the person who was serving in it, others felt that dressing Trump would be akin to an endorsement of the 45th president.

“Merely doing business with the Trumps was an intolerable notion to creative professionals who abhorred the Trump family’s political methods and messages,” the brief supporting Smith’s case reads.

Fashion designers were not refusing to sell their wares to Trump. There was nothing to prevent the first lady from walking into a boutique and purchasing anything she wanted and she did. Designers — some of them — refused to conjure a custom creation for her. Doing so would not have been part of their advertised services; it would have been an indulgence, one they offer to certain celebrities, particularly loyal customers and, yes, previous first ladies. They weren’t interested in collaborating on an evening gown for a state event because doing so, doing this exceptional thing, could be construed as an endorsement of an administration that had already begun to show its divisiveness and vitriol.

Smith is arguing that this is what she’s doing, too. But all of her websites are individually crafted. They are all bespoke. So, in effect, Smith is refusing to do for same-sex couples what she is willing to do for all other couples. She is the tailor who takes everyone’s measurements to create a singular product but refuses Black people or gay people or the disabled.

“The creation of a website, from pictures to prose, is the product of a connection between designer and client,” the brief reads. Smith considers her work an intimate transaction. Human to human. So it’s striking that part of what sparked this lawsuit is Smith’s desire to post a public statement announcing that her wedding website division does not welcome same-sex couples. She does not want to engage with them, get to know their hearts, learn about their desires, hear their love story. She does not want the nuances of individuality to chip away at the certainty of dogma.

Smith expresses herself in her work. But is every single website an expression of her identity? Is she creating art? Or simply an artful commodity; professionally done, well-composed, pleasing to the eye. When she collaborates with a client on a website, exactly how much of it is really her speech? Is she a designer or something more akin to a dressmaker?

These are questions that nag the fashion industry and there’s no decisive answer. Over an entire professional career, a designer might create a handful of garments that rise to the level of art, which is to say frocks that open our eyes to a different kind of beauty, a new way of moving through the world, an inspiring lesson in inventiveness. But mostly, even the most talented designers are simply riffing on what we already know. They’re helping us to be our best selves and that alone is an extraordinary accomplishment.

Smith and her lawyers toss around the word “art” as if it’s common. As if it’s easy. But art is what people aspire to by opening themselves up, not shutting themselves off. Creators, if they are lucky, simply achieve a slightly better dress, film, song, story — or website — than what we already have. The truly remarkable ones communicate a message that helps us become slightly more informed, slightly more empathetic than we were the day before. Smith and her lawyers seem intent on making sure that in the not-so-distant future we’ll all be decidedly worse.

Robin Givhan is senior critic-at-large writing about politics, race and the arts. A 2006 Pulitzer Prize winner for criticism, Givhan has also worked at Newsweek/Daily Beast, Vogue magazine and the Detroit Free Press. Follow her on Twitter @RobinGivhan.

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