It’s the First Amendment, Stupid: Supreme Court Holds That Free Speech Prevails in Challenge to Anti-Discrimination Law

COMMENTARY Courts

It’s the First Amendment, Stupid: Supreme Court Holds That Free Speech Prevails in Challenge to Anti-Discrimination Law

Jul 10, 2023 4 min read

Commentary By

Thomas Jipping @TomJipping

Senior Legal Fellow, Center for Legal and Judicial Studies

Sarah Parshall Perry @SarahPPerry

Senior Legal Fellow, Meese Center

Lorie Smith, the owner of 303 Creative, speaks to reporters outside of the U.S. Supreme Court Building on December 05, 2022 in Washington, D.C. Anna Moneymaker / Getty Images

Key Takeaways

In this 6-3 decision, the Supreme Court held that the government cannot force you to say something that violates your religious beliefs.

The First Amendment not only protects an individual’s right to speak her mind but prohibits the government from compelling her to “speak its own preferred messages.”

The Supreme Court took seriously the need for the Constitution to stand firm, even against cultural and political tides that would weaken our fundamental liberties.

Politico headline said that a recent Supreme Court decision “limits LGBTQ protections” while an ABC News story told us that it was about whether “businesses can refuse to serve LGBTQ+ customers.”

The decision today in 303 Creative LLC v. Elenis wasn’t about that at all. In this 6-3 decision, the Supreme Court held that the government cannot force you to say something that violates your religious beliefs.

Lorie Smith runs 303 Creative, a website and graphic design company. She wanted to expand her business and start creating custom wedding websites but was justifiably hesitant.

Lorie lives in Colorado, where the Colorado Anti-Discrimination Act prohibits discrimination on the basis of sexual orientation (among other categories) in “places of public accommodation,” such as businesses that provide goods and services to the public.

The Colorado Commission on Civil Rights spent years trying to use this law to force cakemaker Jack Phillips to violate his religious beliefs as a condition of doing business in the state. Like Jack, Lorie is a Christian and was concerned she might be next.

To be clear, Lorie does business with all people, regardless of their sexual orientation. What she will not do is use her creative talents to express a message that contradicts her personal beliefs. And here’s perhaps the biggest point: She won’t do that for anyone—no matter who they are. She won’t encourage violence or demean another person, or promote atheism, either.

The line she draws has nothing to do with the customer, but with what the customer wants Lorie to express in a website or graphic design. It’s about Lorie’s freedom of speech and nothing else.

To clarify her rights and make sure she wouldn’t be found in violation of the Colorado Anti-Discrimination Act, Lorie filed a lawsuit, asking for an injunction to prevent Colorado from forcing her to create websites for marriages that defy her beliefs. That was a very real possibility, with very serious potential consequences.

The public accommodations law in Colorado allows anyone in the state to file a complaint, which launches an extended hearing process. The state commission can impose fines, even require violators to participate in mandatory “educational programs,” and force them to submit ongoing reports about compliance with the public accommodations law.

The district and appeals courts acknowledged that Lorie’s website creations were “pure speech” protected by the First Amendment.

The Supreme Court has an extensive history of cases recognizing that these “expressive” forms of speech (from parades to armbands) are entitled to the full protection of the First Amendment. It still ruled against her, however, concluding that ensuring equal access to publicly available goods and services was so important that it justified coercing Lorie into either saying what the state wanted her to say, or not going into the wedding website business at all.

Writing for the 6-3 majority, Justice Neil Gorsuch disagreed. In case after case, the Supreme Court has held that the First Amendment not only protects an individual’s right to speak her mind but prohibits the government from compelling her to “speak its own preferred messages.”

Colorado doing so in this context, however, is even more insidious. In this case, the appeals court actually found that, by requiring expression supporting same-sex marriage as a condition of doing business in the state, Colorado was intentionally trying to eliminate “dissenting” (i.e., traditional) ideas about marriage.

Some things should not have to be said, but we are thankful they were.

One of them is the court’s reminder that “no … law is immune from the demands of the Constitution.” A law that prohibits discrimination based on sexual orientation—such as Colorado’s public accommodations law—must conform to the First Amendment’s protection for the freedom of speech.

This is why the headlines about this case and similar ones involving wedding vendors like cakemakers, photographers, or florists are all wrong. If Lorie declines to do business with someone, it is because of the message that person wants her to convey, not the characteristics he or she possesses.

In fact, Colorado acknowledged that Lorie would create custom websites and graphics for LGBT customers—so long as they do not request she craft a message that violates her beliefs. This applies equally to the white skinhead who wants to create a racist website, and the same-sex couple who wants to promote their wedding.

This case is not about the customer’s civil right, it about Lorie’s constitutional right. Time and again, even when the Supreme Court has been faced with anti-discrimination “public accommodations” laws like Colorado’s, individuals subjected to those laws are still protected under the Constitution from having to express messages contrary to what they hold to be true.

English author Evelyn Beatrice Hall said in 1906 that “I may disapprove of what you say, but I will defend to the death your right to say it.” In this case, dissenting Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson rejected that familiar principle in favor of the state requiring someone like Lorie “to create and sell speech, notwithstanding [her] sincere objection to doing so” as a condition of being in business at all.

They would do well to remember that even when faced with the kind of abhorrent hate speech expressed by groups like Westboro Baptist, the Supreme Court has ensured that yes, the Constitution protects that, too. The court today repeated a principle that, in the end, works for everyone—no matter who they are.

If the Supreme Court in 303 Creative had held that Lorie’s speech could be censored, it would have far-reaching impacts on speech of all kinds—both popular and unpopular. Censoring the speech someone dislikes today would also mean the court could censor the speech someone likes tomorrow.

In this case, the Supreme Court took seriously the need for the Constitution to stand firm, even against cultural and political tides that would weaken our fundamental liberties.  

This piece originally appeared in The Daily Signal on June 30, 2023

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