Supreme Court Rejects Ideological Conformity in 303 Creative v. Elenis

COMMENTARY: In its 6-3 ruling Friday, the Court ruled that the Constitution’s free speech guarantee isn’t just a prohibition against censorship. It also prohibits the government from forcing anyone to speak against his will.

Lorie Smith, owner and founder of 303 Creative.
Lorie Smith, owner and founder of 303 Creative. (photo: Alliance Defending Freedom)

On the last day of its term, the Supreme Court affirmed by a 6-3 majority that the First Amendment’s free speech guarantee protects the work of artists with traditional views of marriage. 

By guarding against government coercion to endorse same-sex weddings, 303 Creative v. Elenis pushes back against the increasing demands of progressives for ideological conformity.

The victor in Friday’s decision, Lorie Smith, is a Christian website designer and owner of Denver-based 303 Creative. Smith wants to expand her business to create custom wedding websites — but only weddings between a man and a woman. Could she do that without violating the Colorado Anti-Discrimination Act (CADA), which demands that she accept commissions for same-sex ceremonies? 

The answer, it seemed, was No. CADA prohibits businesses from discriminating against people based on sexual orientation or announcing an intent to do so. A variety of penalties including fines, cease-and-desist orders, and other “affirmative actions” await those who violate CADA’s provisions.

You may remember that, several years ago, another Coloradan, Jack Phillips, a Christian baker and owner of Masterpiece Cakeshop, was told that he violated CADA for refusing to bake custom wedding cakes for same-sex weddings. Phillips went to court, pointing to the Constitution’s protection of free speech and the free exercise of religion. The Supreme Court ruled in Phillips’ favor, citing the overwhelming hostility of the state’s civil rights commission toward his religious beliefs. 

But, because the Court did not address the constitutionality of CADA, the state law could still be used to compel individuals to act against their deeply held religious views. 

Things look rather different today. Justice Neil Gorsuch, writing for the Court’s majority in 303 Creative, took CADA head on: 

“Laws along these lines have done much to secure the civil rights of all Americans. But in this particular case Colorado does not just seek to ensure the sale of goods and services on equal terms. It seeks to use the law to compel an individual to create speech she does not believe.”

Gorsuch continued that "this Court’s First Amendment precedents teach otherwise.” To illustrate his point, he listed a litany of cases including the Court’s 1943 decision that West Virginia’s attempt to force school children to salute the flag was unconstitutional, a 1995 decision respecting the organizers of Boston’s St. Patrick’s Day parade to exclude a group of gay, lesbian and bisexual individuals from their event, and a 2000 opinion upholding the Boy Scouts’ leadership restrictions for scoutmasters.

In other words, the Constitution’s free speech guarantee isn’t just a prohibition against censorship. It also prohibits the government from forcing anyone to speak against his will. This long-standing principle against compelled speech is particularly important for Americans who hold views, such as the Christian belief in traditional marriage, that have fallen out of favor. 

Disappointingly — though perhaps predictably — the Court’s defense of free speech was not unanimous. Justices Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, dissented. Gorsuch’s response was scathing. 

“If anything is truly dispiriting here, it is the dissent’s failure to take seriously this Court’s enduring commitment to protecting the speech rights of all comers, no matter how controversial — or even repugnant — many may find the message at hand.”

That the Court’s liberal bloc has shifted away from the robust protection of free speech, a core Constitutional liberty, reflects the move among many on the left to the intolerance that often characterizes progressivism

Fortunately, this Supreme Court’s majority isn’t willing to forsake our founding principles and instead holds fast to the understanding that, as Gorsuch wrote, “the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and what keeps our Republic strong.”