“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” — Justice Neil Gorsuch, 303
Creative v. Elenis, June 30.
It was a
great victory for free speech and the First Amendment. While the case was not
framed as a religious liberty case, the echoes of this decision will ring
throughout the world of religious rights. But, as if it was intended to go
hand-in-hand with the result, was a stinging and misleading dissent.
First some
background. In Colorado, where First Amendment rights and religious liberty are
looked upon with suspicion, a web designer, Lorie Smith, who owns a website and
graphic design business wanted to expand the business to include wedding
websites.
However, as
a devout Christian who believes in traditional marriage, she did not wish to
produce websites for same-sex weddings, but the state’s public accommodations
law prohibited her from refusing to build websites for homosexual weddings, and
also prohibited her from articulating that policy on her site.
Smith had a
pretty good idea of what would happen to her if she tried to operate on her
Christian values and beliefs. She knew what had happened to Jack Phillips, the
baker who refused to make a cake celebrating a same-sex wedding; a fight to a
Supreme Court victory only to have the state come after him again for refusing
to bake a gender transition cake for an activist who only wanted a cake from
Phillips.
She also saw
bakers, florists, and wedding photographers fall into the same trap, many
losing their businesses and being burdened with heavy fines and penalties. So,
she didn’t wait for the government to come after her, she went for the
government, challenging its application of the public accommodations law. With
the help of the Alliance Defending Freedom her business sued the state,
claiming that the First Amendment protected her business, 303 Creative.
She lost
most of the early rounds. There were mixed results at the district court level,
but ultimately it refused her request for an injunction prohibiting state
action against her. That refusal was upheld by the Tenth Circuit Court of
appeals, thus setting up the showdown in the Supreme Court which ended with
Justice Gorsuch’s majority opinion June 30.
What was
interesting about the case is that religious liberty was only a peripheral
matter. Central to the case was the question of whether or not the government
could force an individual or business to promote an idea with which it
disagreed. In short, does the Free Speech Clause which protects your right to
say what you believe, protect someone from being forced to say something with
which they disagree?
The answer was clear: The Free Speech Clause protects both.
The six justices in the majority looked at Lorie Smith as a creative
professional, and as such had the right to not create messages that violated
her beliefs, not at all different from a baker, florist, photographer, or
anyone engaged in a business of creative expression. Of course, it is broader
than a religious belief, it encompasses a lot of heretofore natural assumptions
that you can’t force a Jewish printer to print hand-bills for a neo-Nazi
organization, or a Catholic printer for Planned Parenthood, and the examples
are too numerous to mention.
On the other
hand, the opinion did not vizierate the public accommodation law entirely. Just
because a person is “gay” does not allow you to refuse service in a restaurant,
gas station, candy shop, or department store. The rule, which makes common
sense, is that if the goods or services are ready made, the law still applies,
but if there is a portion of the transaction which includes a creative
expression it cannot be enforced against a merchant who disagrees with the
message.
But common
sense never stops criticism. A few days after the ruling, the attorney general
of Colorado, Phil Weiser, was quoted in The Hill as saying, “Our position in
this case has been there is no website development happening, there is no
business operating. This was a made-up case without the benefit of any real
facts or customers.” A made-up case? Apparently the state’s top lawyer has
never heard of a pre-enforcement action. Nor did he know what his office had
stipulated as facts in the case.
But the
worst criticism came from the three dissenting judges in a dissent by Justice
Sonia Sotomayor. She immediately took the side of the LGBT community by
twisting the facts to say the Constitution “contains no right to refuse service
to a disfavored group.” She argued that the Colorado law bars businesses from
discriminating against members of the public over their sexual orientation.
This decision, she said, “declares that a particular kind of business, though
open to the public, has a constitutional right to refuse to serve members of a
protected class.”
Now in my
mind it is hard to fathom how three Supreme Court judges could not understand
that this was a case in which a business would have been required to use its
creative talents to state approval of an idea in which it disagreed. But, as
leftists do automatically, she characterized the issue — not as one involving
free speech rights — but as one of a dominant group denying a minority its
rights to force someone to affirm an idea whose truth is foreign to him.
The problem
is larger than the three dissenters; it is the message they sent to the public
and especially to the media who were quick to jump on the Progressive Left’s
bandwagon: The court is bad, discrimination in creativity and thought is bad,
bad thinking must be kept to oneself.
It’s nice to
know that the court got this one right. It is un-American and un-constitutional
to force people to say and endorse messages they find objectionable. But it is
sad to see how the three can manufacture an issue that does not exist to
placate their leftist friends, both in and outside the media. We deserved an
honest reflection on the case. But, as the court has opined, even
“misinformation” is protected speech.
(You can reach Mike at:
DeaconMike@q.com and listen to him every weekend on Faith On Trial or podcast
at https://iowacatholicradio.com/faith-on-trial/)
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