The biggest takeaway from the Supreme Court’s decision in 303 Creative v. Elenis, which came down Friday, the last day of the term, is that the government cannot compel you to say or write something that you don’t want to say or write.
That this is news in 21st-century America is also news — of the most troubling sort. The right to free speech, enshrined in the First Amendment to the Constitution, the right upon which all other rights putatively depend, has come under such intense attack in recent years that its reinforcement by the highest court in the land is controversial, to the point that howls of dissent pour forth from the erstwhile champions of liberty: the American Left.
The good news is that freedom of speech will live to see another day. By a 6–3 majority, the Supreme Court ruled that a custom web designer in Colorado was not compelled to write words on websites generated for her customers that violated her Christian beliefs about same-sex marriage.
Lorie Smith, who runs a business called 303 Creative in a Denver suburb, wanted to expand her services to include custom websites for weddings. However, because her religious beliefs prevented her from designing websites for same-sex couples, she was afraid the egregious Colorado Civil Rights Commission, the same tribunal that has been hassling Jack Phillips of Masterpiece Cakeshop fame for the past half decade, would bring down its unholy wrath on her efforts as well, so she sued the commission to, in effect, find out. (READ MORE from Tom Raabe: Yet More Trouble for Jack Phillips)
The commission did not disappoint. It ruled against her, as did the 10th Circuit Court of Appeals, which maintained that if she wanted to create websites for traditional weddings, she had to do the same for homosexual weddings.
Represented by Alliance Defending Freedom (ADF), Smith appealed to the Supreme Court. In granting certiorari, however, SCOTUS refused Smith’s request to rule on whether Colorado’s anti-discrimination laws violated the First Amendment’s free exercise of religion clause and narrowed any adjudication to “[w]hether applying a public-accommodation law to compel an artist to speak or stay silent violat[ed] the free speech clause of the First Amendment.”
In the ruling, Justice Neil Gorsuch, joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett, wrote:
The First Amendment’s protections belong to all, not just to speakers whose motives the government finds worthy. In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.… The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. Colorado cannot deny that promise consistent with the First Amendment.
While Gorsuch acknowledged that public accommodations laws were vital to realizing civil rights in America, and that the government has a “compelling interest” in eliminating discrimination in public establishments, he took issue with Colorado’s law, writing:
Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the message.… Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty…. The Court’s precedents recognize the First Amendment tolerates none of that.
“Without the freedom to speak, we shutter diverse views, meaningful debate, and the conditions for progress,” said Smith’s counsel, ADF’s Kristen Waggoner, in response to the ruling. “Regardless of one’s beliefs, race, faith, or identity, no one should be punished by the government for saying what they believe. Political and cultural winds shift, but the First Amendment’s promise remains constant.”
She continued: “If our civil liberties are to have any meaning, people must be free to speak consistently with the very core of who they are. The Supreme Court’s ruling ensures that future generations will enjoy this most essential of freedoms.
While the ruling focused on the free speech clause of the First Amendment and not on the religious liberty clause, the ruling does represent another victory for conservatives in the wedding-vendor wars, which involve bakers, florists, and photographers as well as website designers.
What is usually at issue in such cases is the composition of speech, or “expressive services,” as some characterize it. “Doubtless, determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions,” Gorsuch wrote. Indeed, liberal justices have questioned whether the services provided by bakers, florists, et al., constitute speech when these cases have come before them. “But this case,” Gorsuch opined, “presents no complication of that kind.”
Liberal reaction to 303 Creative has focused almost solely on putative same-sex discrimination. In her dissent, Justice Sonia Sotomayor, joined by fellow liberal Justices Elena Kagan and Ketanji Brown Jackson, wrote, “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”
As in the Masterpiece Cakeshop case and others, the vendor — Smith — does not deny members of any class, protected or otherwise, her services. Gay patrons entering Phillips’ bakery can choose any cake they want off the shelf or commission any design they prefer, so long as they don’t insist that Phillips endorse the wedding. As well, gay patrons wishing Smith’s services may choose an “off the shelf” website design with no pushback. These vendors are not denying the constitutional rights of anyone.
This was a free speech case, by the court’s express bidding. It solidifies Americans’ right to say what they want, even if what they say contradicts government ukases. A ruling on whether religious vendors are compelled to bake a cake or create a website that violates their religious freedom is yet to be determined. And that area of law will remain unclarified until the court decides to take up a relevant case.