Ms. Smith Goes to Washington to Protect Her Religious Freedom
COMMENTARY: When the Supreme Court takes up 303 Creative v. Elenis on Dec. 5, we will find out if people who believe that marriage is between one man and one woman will be shielded from reprisal.
Back in 2015, the Supreme Court created a constitutional right to same-sex civil marriage. Justice Anthony Kennedy, writing for the Court’s majority, was quick to note that “religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”
Kennedy continued by stressing that “the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”
Fast-forward seven years: Does that “proper protection” Kennedy mentioned offer a legal shield for those who hold a traditional Christian view of marriage as between a man and a woman? We are likely to find out soon.
On Dec. 5, the Supreme Court will hold oral argument in 303 Creative v. Elenis, a case brought by Lorie Smith, a Christian website designer in Colorado who wants to expand her business to create custom wedding websites. Smith is an experienced marketing and design professional. After working for several years in the industry, she decided to go out on her own and start 303 Creative, named after the area code for Denver, where her company is based. Smith creates web designs for anyone, but she doesn’t create all messages.
“Because of my faith … I am selective about the messages that I create or promote — while I will serve anyone, I am always careful to avoid communicating ideas or messages, or promoting events, products, services, or organizations, that are inconsistent with my religious beliefs,” Smith’s 303 Creative site explains.
You can probably guess why this is relevant. Smith does not want to be forced to create websites for same-sex weddings. Before expanding her business to include wedding website design services, Smith filed a preenforcement challenge in federal court to the Colorado Anti-Discrimination Act (CADA). CADA bars businesses that are open to the public from discriminating against people based on sexual orientation or announcing an intent to do so.
Smith alleges that enforcing CADA will violate her free-speech rights under the First Amendment. The constitutionality of CADA was challenged in the Supreme Court by Jack Phillips, a Colorado baker and owner of Masterpiece Cakeshop, but the Court ruled in Phillips’ favor based on the overwhelming hostility toward religion shown to him by the state’s civil-rights commission. Smith is represented by the same law firm that represented Phillips, Alliance Defending Freedom (ADF).
In the summer of 2021, two judges on a three-judge panel of the 10th Circuit Court of Appeals ruled against Smith. “Colorado has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace,” wrote the majority. Further, the court asserted, exempting Smith from the obligations of CADA would “necessarily relegate LGBT consumers to an inferior market because Appellants’ unique services are, by definition, unavailable elsewhere.”
Chief Judge Timothy Tymkovich dissented from his colleagues: “The Constitution protects Ms. Smith from the government telling her what to say or do,” he wrote. “But the majority takes the remarkable — and novel — stance that the government may force Ms. Smith to produce messages that violate her conscience. … No case has ever gone so far.”
In late February of this year, the Supreme Court granted Smith’s request for review during its current term. But note the following detail: While Smith claimed that her right to the free exercise of religion is threatened by the application of CADA, the justices are limiting the Court’s review to Smith’s free-speech claim.
Smith’s attorneys, who are obliged to respect this decision, argue in papers filed with the Court that the lower court’s decision will force Smith to speak against her conscience. Such “compelled speech,” they assert, has consistently been condemned by the Supreme Court as violating the First Amendment. The cases they cite include decisions invalidating the enforcement of public-accommodation laws against the organizers of Boston’s St. Patrick’s Day Parade and the Boy Scouts of America.
“Freedom from government-mandated orthodoxy,” they argue, “is crucial to preserving our most fundamental liberties.” If the lower-court decision stands, Smith would be forced to personally design and actively create a website and publish it on the internet. Yet there is no real argument of an “actual problem” facing same-sex couples in accessing wedding website design. And Smith’s counsel also argues that “no state interest — including a dignitary interest — justifies compelling or restraining speech contrary to conscience.” Furthermore, accommodating artists like Smith who object to promoting same-sex weddings does not significantly undermine the state’s interest in stopping discrimination based on sexual orientation.
Predictably and depressingly, the Biden administration has sided with the state of Colorado. According to the administration, Smith is simply a commercial business looking for an excuse to refuse to serve same-sex couples. Any burden on Smith’s free-speech rights is purely “incidental” and therefore the Court’s review of CADA should be deferential. It distinguishes cases involving the St. Patrick’s Day Parade and the Boy Scouts cases as ones where the application of public-accommodation laws would have “directly” burdened speech, arguing that the forced inclusion of homosexual groups or leaders in those cases, unlike CADA’s application to wedding websites, “strayed from the laws’ traditional function of ensuring equal access to commercial goods and services.”
Smith, the administration asserts, deserves neither an accommodation nor an exemption from CADA’s demands. Also siding with Colorado are a number of progressive advocacy groups, including the American Civil Liberties Union, a former defender of free speech that now seems to spend most of its time opposing it.
The U.S. Conference of Catholic Bishops has been joined by several other faith communities in an amicus brief in support of Smith. They highlight prior decisions of the Court involving the Free Speech Clause and the compelled-speech doctrine that pushed back against the excesses of the present moment, “to correct government when it intrudes on individual liberties.” A robust compelled-speech doctrine, they suggest, “could be a powerful tonic in the present cultural moment, where social media, cable news shows, and politics have become especially polarizing.”
Becket Law, the religious-freedom legal powerhouse, has filed an amicus brief in support of Smith. Becket suggests that history and tradition demands religious speech receive particular protection.
“At the Founding, the Framers elected to follow a broad view of freedom of speech,” stated Becket’s brief, “rooted in the experience of over 600 years of conflict over (and growing protection of) religious speech, as well as in expanding theories of natural rights rooted in religious tradition.” Such protection “extends to the right not to foster ideological concepts that run contrary to one’s conscience.”
This summer the Supreme Court vindicated the First Amendment right of Joseph Kennedy, a public-high-school football coach in Washington state, to pray in thanksgiving after games. Justice Neil Gorsuch, writing for the Court’s majority, observed that “respect for religious expressions is indispensable to life in a free and diverse republic.” Such an understanding bodes well for Lorie Smith, who dreams to expand 303 Creative’s services without having to abandon her beliefs.