Proponents of compelled speech like the ACLU have sought to paint 303 Creative v. Elenis, a pivotal free speech case recently argued at the Supreme Court, as the latest installment in the culture wars pitting religious liberty against LGBT rights. They are wrong.
303 Creative is the design studio run by artist Lorie Smith, who specializes in graphic and website design and loves to visually convey messages in every site she creates. She left the corporate design world to start her own small business in 2012 so she could use her skills to promote causes consistent with her beliefs and close to her heart, such as supporting children with disabilities, the beauty of marriage, overseas missions, animal shelters, and veterans.
She was excited to expand her portfolio to create websites that celebrate marriage between a man and a woman, but Colorado made clear she’s not welcome in that space. A Colorado law is censoring what she wants to say and requiring her to create designs that violate her beliefs about marriage.
She enjoys working with people from all walks of life, but, like most artists, can’t promote every message. Her decisions about which projects to design are based on what message she’s being asked to express, not who requests it. After realizing that Colorado was censoring her and after seeing Colorado use this same law to punish Masterpiece Cakeshop owner Jack Phillips, she challenged the law to protect her freedom and her art studio.
Contrary to the claims of the ACLU, the important legal principles at issue have nothing to do with dampening protections for anyone. Rather, 303 Creative is about the first of the freedoms protected by our Bill of Rights — the freedom to think, believe, and speak according to one’s own beliefs.
The case is not about status discrimination. As Colorado readily admitted, she serves everyone. Lorie has clients who identify as LGBT and gladly creates custom websites for them. Like most artists, every message she communicates through her custom art must be consistent with her beliefs. There are some messages she simply cannot create regardless of who requests them.
Indeed, in response to questions posed by Justice Amy Coney Barrett at oral argument, Lorie’s attorney explained that Lorie cannot create some websites celebrating opposite-sex marriage either. For Lorie, as Justice Neil Gorsuch recognized, it’s about the what (the message) not the who.
Still, commentators — including the ACLU — disingenuously suggest that a win for Lorie would return us to the detestable days when restaurant and hotel owners might refuse to provide essential goods and services to a person on account of their race. This is false and despicable rhetoric, and those commentators know it.
Regardless of the outcome in Lorie’s case, public-accommodation laws will still apply to hundreds of thousands of transactions and protect against actual discrimination. As Justice Clarence Thomas pointed out at oral argument, many “straightforward” cases do not implicate speech at all. A business must sell sandwiches, rooms, and other products to everyone. It may not turn anyone away based on who they are.
But Justice Gorsuch was correct when he said that there is a difference between speech and ordinary commerce. Where an artist willingly serves everyone and objects only to imagining, designing, and speaking a custom message contrary to her core convictions, the First Amendment’s protections apply.
This right to be free from government-mandated speech protects everyone. It protects the Black sculptor who declines to design a cross for the Aryan church, and it protects an LGBT website designer who doesn’t want to design a website opposing same-sex marriage, just as it protects Lorie’s ability to decline to create websites inconsistent with her beliefs. Yet, during oral argument, Colorado made the shocking claim that the government may compel both Lorie and the LGBT designer to create messages that violate their beliefs.
This supposed power of the government to censor or compel speech raises all sorts of red flags. If the government gets to compel artists and speakers to profess government orthodoxy, we have all lost a great deal of freedom. We have lost the ability to choose what to say and not say. We have lost the ability to pursue free and fearless reasoning. We have lost the ability to be convinced by the arguments made by someone on the other side of a political issue. Our ability to govern ourselves has been limited.
That’s why, just a few years ago, the federal government argued that “[a]n artist cannot be forced to paint, a musician cannot be forced to play, and a poet cannot be forced to write.” Yet in this very case, Colorado conceded that its argument would allow the government to compel the speech of all sorts of speakers. Speechwriters may be forced to speak, singers to sing, and painters to paint — all contrary to their sincerely held beliefs, the core of who they are. The implications of this case extend far beyond websites.
Regardless of one’s views about marriage, we should all be able to agree that the government may not force people to say things they don’t believe. The Supreme Court made that clear some 80 years ago in West Virginia State Board of Education v. Barnette. In that case, the high court held that the government could not compel young school children to recite the pledge of allegiance, no matter how strong the government’s interest.
As Professor Michael McConnell recently pointed out, Russia has passed a law that criminalizes speech supporting same-sex marriage. That could never happen in the United States. This is because the same principle that protects Lorie’s right to choose what to say prohibits the government from silencing the speech of those who hold different beliefs.
This principle protects all Americans from government coercion. A win for Lorie in 303 Creative is a win for us all.
Erin Hawley is senior counsel with Alliance Defending Freedom (@ADFLegal).
Colorado and the ACLU are arguing for a communist style state, where the government maintains absolute power over its serfs (formerly known as the people). About that gratuitous slap at Russia going orthodox Christian and limiting free speech about non-traditional marriages: It should be noted that California’s Marxist governor with the pretty hairdo just signed into law the criminalization and loss of medical license if a medical professional dared speak contrary (in public; or private to patients) of current government COVID or vaxx protocols. Next in the USA (first in communist states like California) will come criminalization of real climate science, namely those questioning either the reality or causes of temperature changes. You do not have to go to Russia, when right here in the USA states other than Colorado are joining the communist bandwagon.