Compelled speech, or bigoted discrimination?
The Supreme Court hears what could be a landmark case at the intersection of religious freedom and LGBTQ rights
This morning the U.S. Supreme Court heard oral arguments in 303 Creative v. Elenis. The case, involving a website designer who declined to create a wedding website for a same-sex couple, is one of the highest profile of the Court’s term — not just because of the precedent the Court could set, but because of the implications of the decision for competing claims of religious freedom and speech under the First Amendment, and equal protection of the laws under the 14th Amendment.
Let’s back up. In 2018’s Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court issued a 7-2 decision in favor of Jack Phillips, who had declined to bake a cake for a same-sex wedding ceremony. But the ruling, which included liberals Stephen Breyer and Elena Kagan voting with the majority, was narrow in that it held that an administrator’s animus toward Phillips’ religious beliefs prevented Phillips from a fair hearing at the state level. While many advocates for religious freedom rejoiced at the decision, others (including myself) interpreted the holding as limited.
303 Creative appears to be different. There is no record of administrative animus toward the website developer, Lorie Smith, in this case. The question the Court is asked to answer is straightforward: Can a law aimed at preventing discrimination unconstitutionally compel someone’s speech, thereby violating the First Amendment?
Smith believes the answer is yes. By not being to turn down business from a same-sex couple seeking a wedding website, the designer argues Colorado’s antidiscrimination law is compelling her to create a message with which she fundamentally disagrees. This is not an issue, she argues, of turning down a request to build a website for a gay business owner; it is akin to asking someone who is progressive to build a pro-Trump website, or asking a pro-choice person to design a website stating “Abortion is Murder.”
The Court’s record against compelled speech—wherein the government forces a speaker to carry a certain message—is a long one. It is perhaps most famously articulated in a 1943 decision, Barnette v. West Virginia, in which Justice Robert Jackson wrote:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
Colorado, on the other hand, argues the answer to this case’s question is no. By opening one’s business to the public, the state argues, the business must serve all comers and patrons. If the Court were to rule for the Smith in this case, could a white business owner legally decide she won’t serve a Black client? Colorado believes such a ruling would open the door to further discrimination down the road.
I believe it is possible to decide the case in favor of Smith while quelling discrimination in other contexts. Indeed, that is precisely what I expect the Court to do. Since Masterpiece the Court has shifted in a decidedly more conservative direction. Four conservative justices from the Masterpiece majority remain on the Court, including Thomas, Alito, and Gorsuch, who clearly would have ruled in a broader fashion for Jack Phillips. Amy Coney Barrett and Brett Kavanaugh have since joined the Court, and their questions at today’s oral argument suggest a desire to rule for Smith. That’s five votes right there, to say nothing of John Roberts, who voted for Phillips in Masterpiece. My guess is that this will be a 6-3 ruling for Smith, with Barrett or Gorsuch writing the majority opinion.
This ruling would be the most consequential in this area of law since 2015’s Obergefell v. Hodges. In that decision, the Court announced a constitutional right to same-sex marriage. Since then, lawyers and activists supporting religious freedom have been arguing that if constitutional principles of liberty apply to same-sex couples in marriage, the same principles ought to apply to those with religious convictions fundamentally against same-sex marriage.
Arguing for Lorie Smith in today’s case was Alliance Defending Freedom’s Kristen Waggoner. ADF is the most successful Christian conservative legal organization in the country, with several high-profile Supreme Court victories in the past decade. In 2015, just a few days before Obergefell was announced, I interviewed Waggoner for my book on the Christian legal movement. Asked about the tension between religious fredom and LGBTQ rights, Waggoner responded, “I think there are greater principles of freedom at stake.”
With today’s oral argument in mind, it’s difficult to imagine the Court disappointing her when they announce their decision next year.
What a fascinating case! Why exactly is this a free speech issue? You’re designing a website. I don’t know if the judicial branch is aware, but whoever designed the website never really gets any credit for it or is associated with the website anyhow, save for a logo at the bottom. Thus, I can’t imagine how designing a website for someone would be even remotely with in the realm of forced speech. Unless work is speech, in which case, oh me oh my, any striker just got the most powerful weapon of all time to add to their political arsenal: free speech!
Now, to contradict my own hubris, there might be the logo of the website designer at the bottom, but if you’re really so scared of your conservative clientele refusing to use your services because they saw your logo on the website advertising a gay wedding, just remove any visible trace of your company from the website and build it like they asked.
There are so many dimensions to this problem, I wish I could discuss it in class with you again, Dr. Bennett!