US Supreme Court protects free speech of Christian website designer

Originally published in Baptist Press.

The US Supreme Court delivered a First Amendment victory on Friday (June 30) to a Christian designer who objects to creating custom websites for same-sex weddings.

The court ruled in a 6-3 opinion the state of Colorado would violate the free-speech rights of Lorie Smith by requiring her to design a website for a ceremony that conflicts with her conscience. The decision provided an important legal win for the rights of Christians and other faith adherents in a series of cases involving the intersection of religious freedom and same-sex marriage.

In the majority opinion, Associate Justice Neil Gorsuch said the state “seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.”

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As the Supreme 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,” he wrote. “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.”

The high court’s decision broke along ideological/political lines. Nominees by Republican presidents made up the majority, while justices nominated by Democrats were in dissent. Chief Justice John Roberts and Associate Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh and Amy Coney Barrett joined Gorsuch in the majority. Associate Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson dissented.

The head of the Southern Baptist Ethics & Religious Liberty Commission (ERLC) applauded the justices’ action.

“If the government can compel an individual to speak a certain way or create certain things, that’s not freedom – it’s subjugation,” ERLC President Brent Leatherwood said in a news release. “And that is precisely what the state of Colorado wanted.

“Thankfully, the court has stepped in to say that individual rights may not be paved over by a zealous government. Colorado’s scheme of compulsion and coercion against creators has failed once more.”

Leatherwood said the opinion’s implications “extend throughout the nation: People are free to speak, create, and operate in ways that are consistent with their deepest-held beliefs – even when those beliefs are deemed culturally unpopular.”

Alliance Defending Freedom (ADF), which represented Smith in the case, praised the decision as “a win for all Americans”.

The court “rightly reaffirmed that the government can’t force Americans to say things they don’t believe”, said ADF President Kristen Waggoner, who argued before the justices in December on behalf of Smith. “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.

“Disagreement isn’t discrimination, and the government can’t mislabel speech as discrimination to censor it,” she said in written comments.

Smith expressed gratitude for the ruling.

“For me, it’s always about what message is requested, never the person requesting,” Smith said in an ADF release. “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.”

Supporters of lesbian, gay, bisexual, transgender and queer (LGBTQ) rights decried the decision.

The opinion “is a dangerous step backward, giving some businesses the power to discriminate against people simply because of who we are,” said Kelley Robinson, president of the Human Rights Campaign, a leading LGBTQ organization. The LGBTQ community will not permit the government “to erase us – we will fight back,” Robinson said in a written release.

Smith, owner of 303 Creative in the Denver area, designs websites for a variety of causes and clients, however, including people who identify as LGBTQ. She will not create websites for same-sex weddings, however, because of her belief as a Christian that marriage is only between a man and a woman.

She challenged a public accommodation law — the Colorado Anti-discrimination Act (CADA) — out of concern the state would seek to compel her to design websites for same-sex ceremonies if she expanded her business to include wedding services. The CADA includes “sexual orientation, gender identity” and “gender expression” as protected classes. A federal judge and the 10th Circuit Court of Appeals in Denver ruled in favor of the state.

In a 7-2 opinion in 2018, the Supreme Court decided in favor of Colorado cake artist Jack Phillips in a similar case under the CADA. Phillips had declined to design and decorate a cake for the wedding of two men.

The Supreme Court’s decision in that case, however, was not an expansive victory for religious freedom. The justices found the Colorado Civil Rights Commission demonstrated “religious hostility” toward Phillips, owner of Masterpiece Cakeshop, but said similar facts in different contexts may produce different rulings.

In Friday’s opinion, Gorsuch said previous Supreme Court rulings have illustrated “the First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply ‘misguided,’” quoting a specific case.

“Generally, too, the government may not compel a person to speak its own preferred messages,” Gorsuch wrote.

“As surely as Ms Smith seeks to engage in protected First Amendment speech, Colorado seeks to compel speech Ms Smith does not wish to provide.”

Colorado’s logic “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,” Gorsuch wrote.

Quoting from a lower-court dissent in the case, he wrote: “The government could require ‘an unwilling Muslim movie director to make a film with a Zionist message,’ or ‘an atheist muralist to accept a commission celebrating Evangelical zeal,’ so long as they would make films or murals for other members of the public with different messages.”

The court acknowledges the important role public accommodations laws play in protecting against discrimination, but it “has also recognized that no public accommodations law is immune from the demands of the Constitution,” he wrote.

In a dissent longer than the majority opinion, Sotomayor said the high court for the first time gave “a business open to the public a constitutional right to refuse to serve members of a protected class.”

The Colorado law “targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment,” she wrote.  

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