The Story: The U.S. Supreme Court issued a victory for free speech and religious liberty in its ruling in 303 Creative v. Elenis, a case that involves a wedding website designer.
The Background: Lorie Smith is an artist who runs her own design studio, 303 Creative, which specializes in graphic and website design. She wanted to expand her business to include services for couples seeking wedding websites. But a Colorado law would censor what Smith wanted to say and would require her to create designs that violate her beliefs about marriage. Although she’s willing to serve LGBT+ customers in other areas, she doesn’t believe in promoting the message of same-sex marriages.
To clarify her rights, Smith filed a lawsuit seeking an injunction to prevent Colorado from forcing her to create websites that conflict with her belief that marriage should be reserved to unions between one man and one woman. The U.S. Court of Appeals for the Tenth Circuit ruled against her, holding that Colorado can force her to create websites promoting messages that contradict her beliefs about marriage.
On Friday, June 30, the Supreme Court overturned that lower court ruling and said that the First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees. (The justices were asked by Smith to consider both a free speech claim and a free exercise claim but ruled only on the former.)
As the majority opinion points out, under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the 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,” notes the decision. “The Court’s precedents recognize the First Amendment tolerates none of that.”
Justice Gorsuch delivered the opinion of the Court, which was joined by justices Roberts, Thomas, Alito, Kavanaugh, and Barrett. Justices Sotomayor, Kagan, and Jackson dissented.
What It Means: In his opinion for the majority, Justice Gorsuch gets to the heart of the issue with a simple question: “Can a State force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?” The answer by Justices Sotomayor, Kagan, and Jackson is, as Gorsuch notes, yes you can if you claim the state is regulating conduct rather than speech.
Fortunately, a majority of the Court still recognizes that you can’t simply redefine speech as conduct to allow the state to find a workaround for the First Amendment rights of Americans.
As Jeff Zymeri points out, the facts of this case bear a close resemblance to Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case in which the Supreme Court ruled in favor of a baker, Jack Phillips, who objected to making custom cakes for same-sex couples. “In a 7-2 opinion penned by then-justice Anthony Kennedy, the Court held that by punishing Phillips, Colorado had violated his free exercise of religion,” says Zymeri. “Kennedy explained that the commission had engaged in overt hostility towards Phillips’s religious beliefs in the process. The narrow ruling left major free-speech questions unanswered.”
With the 303 Creative case, some of those free-speech questions are now answered.
This ruling marks a significant triumph for individuals who want to express their personal and religious beliefs without fear of governmental compulsion to speak messages that contradict those beliefs. It also reinforces the fundamental American principle that everyone has the right to express their own beliefs, regardless of how they might contradict popular opinion, overly constrictive legislative mandates, or secular cultural expectations.
In this case, the Court held that creating expressive designs such as websites is a form of speech. Therefore, the state cannot force Smith to express messages that conflict with her religious beliefs about marriage. The Court upheld a fundamental tenet of free speech rights, which is the right to not only speak freely but also the right to refrain from speaking at all—particularly when the speech proposed is antithetical to the speaker’s beliefs.
The ruling does not mean religious liberty provides an excuse to mistreatment of individuals based on their sexual orientation. Instead, it makes clear that in situations where speech and creative expression are involved, a delicate balance must be struck between anti-discrimination laws and First Amendment rights.
By drawing a clear line between conduct and speech, the Court has also made it clear that the state cannot just regulate speech by redefining it as conduct. This distinction is crucial to protecting free speech, as it prevents the state from circumventing First Amendment protections under the guise of regulating conduct.
Additionally, this ruling strengthens the recent precedents involving compelled speech and the First Amendment. It gives a stronger legal footing to those who assert their right to free speech and provides them with a significant Supreme Court decision to back up their claims. Hopefully, this ruling will cause state governments to think twice before attempting to compel the conscience of creative workers.
While the outcome is not wholly surprising, Christians should not be neglect to thank God for this decision. By upholding the essential rights to freedom of speech—including religious speech—the justices have issued a powerful reminder that the Court is still willing to protect the Constitutional rights of individuals even when such speech violates America’s recently adopted version of secular civil religion.
The Gospel Coalition