Updated: 06/30/2022 05:19 PM EDT
The government cannot force Christians to create websites or engage in other speech-related business activities that violate their faith, the Supreme Court ruled in a landmark decision extending constitutional protections to believers in the workplace.
The case pits the government of the state of Colorado against Lorie Smith, a Christian graphic artist and web designer who felt called by God to begin providing “customized, dedicated” websites for weddings through her business — 303 Creative based in Littleton, Colorado. But she dared not advertise this service, because she feared being charged with violating the Colorado Anti-Discrimination Act (CADA), which state officials have used to compel Christians to participate in same-sex ceremonies.
“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,” said Smith. “Because of my faith, however, I am selective about the messages that I create or promote.” While she “will serve anyone, I am always careful to avoid communicating ideas or messages, or promoting events, products, services, or organizations, that are inconsistent with my religious beliefs.”
CADA would have forced her to design websites that deemed same-sex ceremonies a “marriage,” in violation of biblical teachings. The Supreme Court decided that violates the Constitution’s prohibition on compelled speech.
“Colorado does not just seek to ensure the sale of goods or services on equal terms. It seeks to use its law to compel an individual to create speech she does not believe,” decided the justices in a 6-3 ruling in the case, 303 Creative v. Elenis. “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,” wrote Justice Neil Gorsuch. But “the government may not compel a person to speak its own preferred messages,” and “no public accommodations law is immune from the demands of the Constitution.”
“A commitment to speech for only some messages and some persons is no commitment at all,” wrote Gorsuch on behalf of the court’s conservative bloc. “[T]he Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider ‘unattractive,’ ‘misguided, or even hurtful.’ But tolerance, not coercion, is our [n]ation’s answer. 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.”
Gorsuch said reaching his decision was easy, because “this case presents no complication” of any kind.
“As Christians, we are instructed to do everything, including what we speak and how we work, as unto the Lord for His glory. We cannot check our biblical faith at the door of our vocation,” said Tony Perkins, president of the Family Research Council and a former member of the U.S. Commission on International Religious Freedom. “That understanding of free speech and religious freedom has long been protected by the First Amendment. I am grateful that the U.S. Supreme Court strongly reaffirmed this today.” FRC filed an amicus curiae brief on Smith’s behalf.
In this ruling, “the court reiterated that it’s unconstitutional for the state to eliminate from the public square ideas it dislikes, including the belief that marriage is the union of husband and wife,” said Kristen Waggoner, president of the Alliance Defending Freedom, which defended Smith. “Disagreement isn’t discrimination, and the government can’t mislabel speech as discrimination to censor it.”
The broad scope of the decision, rooted in unalienable constitutional rights, “protected the religious liberty of all Americans,” said the Standing for Freedom Center at Liberty University. “This decision upholds the rights of Smith, and all Americans, to practice their faith openly in every area of their lives.”
LGBT activists exploited the same non-discrimination law, CADA, to bring Masterpiece Cakeshop owner Jack Phillips to court twice, sending Phillips spiraling into an ongoing, 11-year legal battle. In 2018, the U.S. Supreme Court ruled 7-2 that Colorado state officials had shown “clear and impermissible hostility toward the sincere religious beliefs that motivated” Phillips. But Justice Anthony Kennedy’s opinion did not comment on whether the First Amendment protected Phillips’s right to live out his faith at work. A lawyer who identifies as transgender then targeted Phillips with a lawsuit after he refused to bake a cake celebrating a “gender transition.”
“Our cases aren’t about what any of us believe regarding marriage. They’re about freedom for all of us from government oppression,” wrote Smith and Phillips in a joint op-ed in USA Today last year. “[W]e don’t want to see anyone of a differing opinion stripped of their freedom, their livelihood, the safety of their families or the fulfillment of their dreams: Not the LGBTQ web designer, not the atheist cake artist, not the Muslim photographer, not the Democratic speechwriter. No one should be forced to speak messages that violate their core convictions.”
Smith celebrated her victory on Friday in an ebullient online message. “From day one all I wanted is to speak consistent with my beliefs. And I want that for everyone. I want that for the LGBT website designer, the Democrat speechwriter, the Jewish calligrapher, the pro-life photographer,” explained Smith. “Everyone should be free to speak consistent with who they are and what they believe. … Today is truly a victory for each and every one of us.”
The ruling did not consider religious liberty considerations, looking only at whether the law violates the First Amendment’s protections for freedom of speech. But faith played a defining role throughout the case. A small group of hooded, masked, pentagram-clad protesters held signs proclaiming, “The Future is Satanic” after oral arguments concluded last December 5. Some on the Left demanded Justice Amy Coney Barrett recuse herself from the case, because of her sincerely held Christian faith.
Today’s decision brings the legal relief Smith first sought in September 2016, but U.S. District Judge Marcia Krieger, a George W. Bush appointee, ruled against her. In July 2021, the Court of Appeals for the Tenth Circuit also sided with the LGBT lobby against freedom of conscience.
A dissent from the court’s liberal bloc — written by Justice Sonia Sotomayor and joined by Elena Kagan, and Ketanji Brown Jackson — claimed the majority’s constitution-affirming decision has the “symbolic effect” of “mark[ing] gays and lesbians for second-class status” before invoking the murder of Matthew Shepard in a drug-related robbery reportedly committed by two bisexual men. She claimed 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.” However, the decision does not allow Smith to refuse to serve customers who identify as LGBT; it merely says the government cannot force her to endorse their definition of marriage in her own words.
Gorsuch rigorously defended himself from the dissent’s logic. “It is difficult to read the dissent and conclude we are looking at the same case,” he wrote, because the dissent “reimagines the facts of this case from top to bottom. … In some places, the dissent gets so turned around about the facts that it opens fire on its own position.”
Opponents warned of dire results if the court respected the faithful’s ability to obey the moral teachings of the world’s foremost religions. “If we lose this case, warned Colorado Attorney General Philip Weiser, baristas who serve “specialized lattes” may say, “I don’t want to serve Mormons, because I don’t believe in the Mormon religion.” (Members of the Church of Jesus Christ of Latter-Day Saints “believe they are divinely counseled not to drink coffee,” according to the faith’s website.) A coalition of judicial activists including the ACLU, the League of Women Voters, and Ralph Nader’s Public Citizen filed amicus briefs against respecting personal autonomy for religious faith.
Legal experts found that Gorsuch’s ruling strengthened the Constitution. The First Amendment not only allows freedom of speech but also bans compelled speech: The government cannot mandate that people say things they do not believe. “There is a fundamental, constitutional, distinction between refusing to serve someone because of” how they identify, wrote Casey Mattox, a constitutional attorney now serving as vice president for legal and judicial strategy at Americans for Prosperity, “versus declining to say what you do not believe.”
Friday’s ruling will echo far beyond Colorado. So-called “non-discrimination” laws explicitly mentioning sexual preference and/or adherence to transgender ideology are on the books in 22 states; an additional seven states interpret discrimination on the basis of sex as if it applied to those categories, without passing laws.
Ben Johnson is senior reporter and editor at The Washington Stand.
