NRPLUS MEMBER ARTICLE T he freedom of Americans to practice their religious faith is sufficiently embattled these days that the “first freedom” needs to sail under the flag of free speech to secure its full protection. This morning at the Supreme Court, in 303 Creative LLC v. Elenis, a 6–3 Court ruled that a creator of wedding websites can practice her trade even if she refuses the government’s demand that she violate her conscience by celebrating same-sex weddings. Unless and until the Court reconsiders its jurisprudence around the free exercise of religion, we will have to settle for protecting religious faith as just another form of speech. For now, it will do.
303 Creative may not be a ruling specific to religious liberty, but it is a victory for artists and creators of all kinds. Justice Neil Gorsuch’s opinion for the Court emphasizes that “the freedom to think and speak is among our inalienable human rights,” which may not be commandeered by the government. And it frames this as a right possessed by all Americans, regardless of whether the motive for their dissent from government orthodoxy is religious in nature.
Taking the Cake
Lorie Smith wishes to get into the wedding-website business, but feared that Colorado would pursue her if she stood on her religious beliefs and declined to create websites for same-sex weddings. The deeply illiberal government of Colorado had made clear that it stood ready to do so, as it had already done to cake-baker Jack Phillips and others. Colorado vigorously defended its power to suppress dissent and chase it from the public square. Its comprehensive defeat is a victory not only for Christian conscience, but for a liberal society.
Smith might have brought her claims under the First Amendment’s guarantees of religious liberty, but the Court, since the controversial 1990 Smith opinion written by Justice Antonin Scalia, has taken the position that the free exercise of religion must give way to any law that is generally applicable. The issue might have been resolved by Phillips’s case, Masterpiece Cakeshop, but the Court resolved that lawsuit in 2018 on the narrower grounds that Colorado’s Commission on Civil Rights demonstrated open religious bigotry against Phillips. Thus, this case was brought under the right against compelled speech — an aspect of the First Amendment’s free-speech guarantees that the Court has long protected.
Today’s decision should also finally end Phillips’s ongoing ordeal, in which he — like Smith — has long been represented by the Alliance Defending Freedom, which adds today’s outcome to a long string of Supreme Court victories.
Freedom to Create
303 Creative squarely presented a question of crucial importance to the survival of pluralism and liberal democracy: Can the government compel artists, writers, and other creators to endorse government orthodoxy on fundamental issues in their creations? Can it make adherence to that orthodoxy the price of being able to create things for a living?
The Court easily turned away the argument that Smith’s websites are not speech:
A hundred years ago, Ms. Smith might have furnished her services using pen and paper. Those services are no less protected speech today because they are conveyed with a voice that resonates farther than it could from any soapbox. . . . All manner of speech—from pictures, films, paintings, drawings, and engravings,” to “oral utterance and the printed word”—qualify for the First Amendment’s protections; no less can hold true when it comes to speechlike Ms. Smith’s conveyed over the Internet.
She will consult with clients to discuss their unique stories as source material. . . . And she will produce a final story for each couple using her own words and her own original artwork. . . . Of course, Ms. Smith’s speech may combine with the couple’s in the final product. But for purposes of the First Amendment that changes nothing. [Alterations omitted.]
It also rejected the view that Smith had no right to control her own speech because it is a unique product for which there is no substitute. The lower court had taken an especially alarming view:
Due to the unique nature of Appellants’ services, this case is more similar to a monopoly. The product at issue is not merely “custom-made wedding websites” . . . but rather “custom-made wedding websites of the same quality and nature as those made by Appellants.” In that market, only Appellants exist. [Emphasis added, citation omitted.]
As I’ve noted previously, “Under this theory, customers do not simply have a right to buy your product: They have a right to you.” Gorsuch and the majority found this as alarming as I did:
In some sense, of course, her voice is unique; so is everyone’s. But that hardly means a State may coopt an individual’s voice for its own purposes. . . . Were the rule otherwise, the better the artist, the finer the writer, the more unique his talent, the more easily his voice could be conscripted to disseminate the government’s preferred messages. That would not respect the First Amendment; more nearly, it would spell its demise.
Gorsuch was also unpersuaded by Colorado’s fallback argument that Smith and her company lost their right to control their own speech simply by getting paid for what she does, or because she uses a limited-liability company: “Many of the world’s great works of literature and art were created with an expectation of compensation,” and the right to speak through a corporate entity “underlies our cases involving everything from movie producers to book publishers to newspapers.” He quoted George Orwell: “If liberty means anything at all, it means the right to tell people what they do not want to hear.” And, of course, to refuse to tell them what they do want to hear.
Justice Sonia Sotomayor’s dissent, joined by the Court’s two other liberals, offered only cold comfort: Smith’s company “need not hold out its goods or services to the public at large. Many filmmakers, visual artists, and writers never do. (That is why the law does not require Steven Spielberg or Banksy to make films or art for anyone who asks.)” I’m sure Lorie Smith would like to trade places with Steven Spielberg, but our First Amendment rights are not limited to multimillionaires with national reputations who need not work retail. They belong to everyone.
A Matter of Identity
Gorsuch took pains to note that the Court was not overturning the vast apparatus of public-accommodation laws that prevents businesses from discriminating against customers based upon their race, religion, gender, sexual orientation, etc. But those laws, which have greatly expanded in scope, are also not themselves “immune from the demands of the Constitution.” They cross the line when they move from the sale of generic products and services to compelling Americans to sing from the government’s hymnal.
At bottom, Colorado’s argument was that Smith is really discriminating against same-sex couples because of their identity as gay people, notwithstanding the fact that the parties stipulated that Smith would gladly accept gay customers, she just wouldn’t celebrate same-sex weddings. In Colorado’s view, a same-sex couple’s conduct in getting married is inseparable from its identity — but a Christian’s conduct in adhering to the tenets of her faith is separable from her identity as a Christ-follower. That contradiction runs through many of the debates over the proper line between protecting the rights of gay individuals from discrimination and protecting the liberty of Christians from compulsion: It always ultimately rests upon the notion that religious belief and practice are voluntary choices, while every aspect of sexual behavior is a sacred form of identity.
The majority did not delve deeply into these cultural assumptions; indeed, it took pains not to turn its decision on the religious nature of Smith’s dissent. But the dissenting justices jumped into the cultural fray:
There are some public places where [LBGT people] can be themselves, and some where they cannot. Ask any LGBT person, and you will learn just how often they are forced to navigate life in this way. . . . It is an awful way to live. Freedom from this way of life is the very object of a law that declares: All members of the public are entitled to inhabit public spaces on equal terms.
But Sotomayor does not mean “all” members of the public. The whole point of her opinion is that Lorie Smith, when she goes to work every day in her own business, is not free to be herself, if being herself means being a faithful follower of Jesus Christ. She must pack that up and put it away if she chooses to enter the public square. “The unattractive lesson of the majority opinion,” wrote Sotomayor, “is this: What’s mine is mine, and what’s yours is yours.” That’s called a free society. Sotomayor argues that what’s yours is also mine: Smith’s customers, and the state of Colorado, have the right to force her to put her own self aside if she wants to stay in business. Be thankful that her view did not prevail.
Making Up the Facts
Where the majority and the dissent disagreed most fiercely was over the stipulated facts. The majority treated the factual record as if it was evidence, and Colorado’s stipulation as if it was an agreement to those facts — both elementary ways for courts to decide cases. Armed with those facts, it distinguished between Smith’s right to avoid crafting and speaking messages she dissents from, and the customer’s right to avoid discrimination based upon status.
Sotomayor’s dissent however, refused to accept that such a distinction is possible, claiming over and over and over that Smith’s case could not be distinguished in any way from, say, a hotel turning away black customers, even though Colorado itself stipulated that Smith would serve gay customers. Thus, she claimed, with blithe disregard for the facts in the record, that the Court was creating “a constitutional right to refuse to serve members of a protected class” — a right Smith never asked for!
Writing for the press rather than the facts and law of the case before the Court, Sotomayor waved the wholly irrelevant specter of the Matthew Shepard case and the Pulse nightclub shooting, as if subsequent evidence hadn’t undermined the myths of both cases as anti-gay hate crimes. She ranted about laws in Kentucky and Tennessee that “censor discussion of sexual orientation and gender identity in schools . . . and ban drag shows in public” while “we are told [by the Court] that the real threat to free speech is that a commercial business open to the public might have to serve all members of the public.” Well, yes, the Court focused on the case it was asked to hear, instead of totally different cases, because that is how courts work.
Gorsuch wearied of all of this, charging that the dissent “reimagines the facts of this case from top to bottom” in order to get away from the stipulated facts that Colorado itself agreed to; he described the dissent as “pure fiction” and wrote that it is “difficult to read the dissent and conclude we are looking at the same case.” Moreover, “the dissent’s treatment of precedent parallels its handling of the facts.” “The dissent assures us that a company selling creative services ‘to the public’ does have a right ‘to decide what messages to include or not to include,’” Gorsuch noted. “If that is true, what are we even debating?”
The question assumes that the dissent wanted a debate, when in fact what the dissent wanted was to force everyone to say the same thing.