Will web designers win a license to discriminate?

The Supreme Court considers whether web professionals can reject same-sex marriage web site jobs on religious grounds.

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The Supreme Court is hearing a case this fall involving a web designer who wants to refuse to provide wedding web design services to same-sex couples.  The designer makes the argument that doing wedding-related websites/designs for LGBTQIA2S+ people is against her views and religion.  Why is the designer taking this to the Supreme Court? She wants the entire Colorado anti-discrimination law that prevents her from restricting her services to heterosexual couples overturned.  

Why does this matter?

No one has asked the designer to do a same-sex wedding website. She just wants to be able to put up a notice that explains her company will not in the future do any websites pertaining to gay marriage.  Some may look at this and say, “Why not? It’s their business, it’s their right to choose. If they don’t want to offer those services, what’s the big deal?”  People in favor of overturning the anti-discrimination law get to deny services based on their religious preference.   And people who may be against overturning it won’t spend their money with these companies knowingly, and other designers are free to scoop up the other business.  Win/win, right?

Not exactly.  The designer appears to want this Court decision to have far-reaching consequences throughout the United States.  The earlier Masterpiece Cakeshop v. Colorado Civil Rights Commission Supreme Court case was a first step to allowing discrimination due to religious reasons.  This was the case that involved a Colorado baker who refused to make a custom wedding cake for a gay couple.   However, the Supreme Court did not rule on an overall distinction between freedom of religion, speech, and discrimination.  It is also worth noting that the same group who financially backed and represented the baker in that case is also backing the web developer in this new case.  That organization is classified by the Southern Poverty Law Center as a hate group

 Like the separate but equal Supreme Court decision that was overturned in 1955, there runs the risk of LGBTQIA2S+ persons not being able to find a developer or designer that will be able to help them.  And not only the LGBTQA2+ community.  The aim of the group responsible for this movement appears to be to restrict and roll back the rights of many identity groups in the United States permanently. 

Will web developers be allowed to discriminate against protected classes?

Protected classes, according to the federal government, range from people of color to disabled persons.  If the Supreme Court rules in favor of the web developer, what’s to stop them from saying no Black History Month websites? Many states, like South Carolina, are already trying to achieve this in terms of education:  The state legislature is considering bills that would ban the teaching of the 1619 Project or anything that claims that “one race oppressed another.”

One of my WordPress projects is a site on my family and their history.  I am building a website that deals with my family, reaching back to slavery.  My great-great-grandfather, Jeff Doby, was born in Camden, S.C., into slavery in 1856.  He would live to the amazing old age of 105 and die in the 1960s when my mother was a child.  His life spanned the Civil War, Reconstruction, and Brown v. Board of Education.  If I needed to hire help for my website, say another developer or a designer, would they be able to tell me they don’t do Black history?  

My own mother also has quite a history.  She ran errands for my great-great-grandfather so she heard first-hand accounts of what it was like to live and work under American slavery.   She also integrated her high school 20 years after it was federally legalized.   Would I not be able to get help in the WordPress or tech community to tell her story?  And if you think no one is using their religion to discriminate against people of color, you would be unfortunately incorrect. In fact, it took until 1997 for a majority of Americans to support interracial marriage, and even in 2018, 17 percent of adults described interracial marriage as “morally wrong.” How far are we from a claim that this “moral” opinion provides a new license to discriminate on religious grounds?

Tech already has an equality problem

A lack of minorities and women has led to biases in technology that have affected people in many ways.  Karen Sandler suffers from hypertrophic cardiac myopathy, a condition in which her heart is prone to arrhythmias.  To keep her alive, she wears an implantable cardioverter-defibrillator (ICD).  This device shocks her heart if it appears to be slowing down to prevent her death.  Sandler became pregnant and due to changes in her heart related to pregnancy, her device has accidentally shocked her, multiple times.  The people who created the device did not consider that Sandler is a person who can get pregnant.  Things might have been different if a more diverse group of people were in the room when the code was designed.

Choosing not to see color or gender sounds good in theory, but it is not something that can realistically be done, especially in tech.  If we tell developers and designers that they have a right to discriminate against others, how will we build and create more inclusive technology?  Technology that depends on seeing color? How will people who have been historically shut out of tech be able to even use the latest technology? 

What can we do to help?

Now more than ever it is important to commit to helping protected classes and marginalized people.  The web designer wants to be able to post a notice saying whom she will not help. I say we do the opposite and post who we do help.   Let people out there who may be facing discrimination know that they have a safe technological space within your organization.  Make yourself aware of local movements that are taking place in your area.  The United States is a large place, and there may be a bigger fight in a rural or smaller area versus a place like New York City.  You can also do the work at your job or organization.  Do you have a diverse and inclusive environment that will foster different ideas and creations? Are underrepresented groups a part of any decision-making at your company? And finally, talk to other developers.  Talk to ones in the LGBTQIA2S+ community about what is going on and if possible, give them a voice to express their concerns

Let’s be clear, I am not worried just because I could be on the chopping block

German Lutheran pastor Martin Niemöller wrote a very famous poem about the lack of action by different German people during the rise of the Nazi party.  It goes:

First, they came for the socialists, and I did not speak out—
Because I was not a socialist.

Then they came for the trade unionists, and I did not speak out—
Because I was not a trade unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

This poem has been used time and time again to warn of the dangers of letting powerful entities come for less powerful groups.  When the power-hungry need a scapegoat, need someone to hate or keep down, and they get that scapegoat, it’s only a matter of time before they start looking for someone else.  However valid that is, it is not the point that I am making today.  No matter how safe we may feel in our ideologies, our religion, our own homes, we should be alarmed anytime the powerful deem any of us less.  Regardless of what it means to our person.  

If we all are one of God’s creations (as the web developer spearheading this case was taught), if we all come from a creature that decided one day the ocean was not enough, if we are all come from one being, one curious animal, a group of deities that were lonely, or even someone bored – then don’t we all have an obligation to make sure our siblings in this world are free to live in an abundance of love?  We are fortunate to all be here in this moment, living and breathing the space of long-dead ancestors and scholars, religious or not. Don’t we owe it to the time we spend here to leave a legacy of love and acceptance? To help others? I don’t think any creator would be mad at that.


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Nyasha is the Editorial Director at MasterWP and a software developer at Howard Development & Consulting, the company behind WP Wallet.

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