SCOTUS protects free speech of creative professionals in 303 Creative v. Elenis ruling
WASHINGTON – The Supreme Court today upheld the right of creative professionals to “just say no” to creating works that violate the creator’s religious conscience. In a 6-3 vote, the Justices said, “The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.”
Denver web designer Lorie Smith wants to do wedding websites but her biblical conviction about marriage prevents her from doing designs affirming same sex weddings. Colorado’s public accommodation law prohibits discrimination on the basis of sexual orientation, and so Lorie filed a lawsuit to protect her right to say no to messages that violate her conscience.
In the opinion for the majority, Justice Neil Gorsuch said: “A ruling for the state would create an untenable choice for Smith. If she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs, sanctions that may include compulsory participation in remedial training, filing periodic compliance reports . . . and paying monetary fines.”
“Under Colorado’s logic,” Gorsuch continues, “the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic–no matter the underlying message–if the topic somehow implicates a customer’s statutorily protected trait. . . . 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.”
“[A]s this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong….’
Justice Sotomayor wrote a dissent joined by Justices Kagan and Jackson. The dissent decried the breadth of the ruling: “Today, 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.”
In fact, the ruling does no such thing, according to religious liberty attorneys involved in the case. They say SCOTUS simply recognized that the First Amendment protects the right of a business open to the public to refuse to create unique works containing messages that violate religious conscience or belief of the business owner or staff.
Lorie Smith serves all customers, but she does not create all messages.
On the ADF website, Smith said: “I’m incredibly grateful for the U.S. Supreme Court’s ruling, which says I am free to create art consistent with my beliefs without fear of Colorado punishing me,” said Smith. “This is a victory not just for me but for all Americans across our great country—for those who share my beliefs and for those who hold different beliefs. Whether you’re an LGBT graphic designer, a Jewish calligrapher, an Atheist speechwriter, or a pro-life photographer, the government shouldn’t force any of us to say something we don’t believe. I love people and work with everyone, including those who identify as LGBT. For me, it’s always about what message is requested, never the person requesting. I hope that, regardless of what people think of me or my beliefs, everyone will celebrate that the court upheld the right for each of us to speak freely.”
“The U.S. Supreme Court rightly reaffirmed that the government can’t force Americans to say things they don’t believe. 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 ADF CEO, President, and General Counsel Kristen Waggoner, who argued before the Supreme Court on behalf of Lorie and 303 Creative. “Disagreement isn’t discrimination, and the government can’t mislabel speech as discrimination to censor it. Lorie works with everyone, including clients who identify as LGBT. As the court highlighted, her decisions to create speech always turn on what message is requested, never on who requests it. The ruling makes clear that nondiscrimination laws remain firmly in place, and that the government has never needed to compel speech to ensure access to goods and services.”
“This is a win for all Americans,” Waggoner added. “The government should no more censor Lorie for speaking consistent with her beliefs about marriage than it should punish an LGBT graphic designer for declining to criticize same-sex marriage. If we desire freedom for ourselves, we must defend it for others.”
“This is the ruling so many have been praying for and waiting for” said Michael Whitehead, Kansas City attorney. “In Jack Phillips’ case, ‘Masterpiece Cakeshop,’ the Court never reached the question of whether his custom cakes were expression protected by the Free Speech or Free Exercise Clause. Some said that cake isn’t speech, it’s food. But here, the Court had no difficulty determining that Lori’s creative work qualifies as expressive activity, and the Bill of Rights protects her conscience.”
Attorney Jonathan Whitehead added: “This is a ground-breaking win for religious conscience. The First Freedom has been given its rightful place in the balancing of rights in the market place. Statutory rights of non-discrimination have their place, but they cannot displace the fundamental freedoms of free speech and free exercise of religion.”
Michael and Jonathan Whitehead are a father-son team of Southern Baptist lawyers who serve as allied attorneys with ADF, the legal group that handled the case for Lori Smith and 303 Creative. Michael serves on the governing board of ADF, and also works as general counsel for the Missouri Baptist Convention. Jonathan serves on the Board of Ethics and Religious Liberty Commission, the SBC public policy agency, which filed an amicus brief in the case.
The Whiteheads say they are hopeful that today’s decision for Lorie Smith will be a valuable precedent for Jack Phillips, the Colorado wedding cake designer, who is facing a third lawsuit against Masterpiece Cakeshop by LGBT activists. The latest case is pending in the Colorado Court of Appeals. ADF is also handling Jack’s case.
“Without the freedom to speak, we shutter diverse views, meaningful debate, and the conditions for progress,” Waggoner explained. “Regardless of one’s beliefs, race, faith, or identity, no one should be punished by the government for saying what they believe. Political and cultural winds shift, but the First Amendment’s promise remains constant. If our civil liberties are to have any meaning, people must be free to speak consistently with the very core of who they are. The Supreme Court’s ruling ensures that future generations will enjoy this most essential of freedoms.”