How 303 Creative v. Elenis exposed the ideology of activist SCOTUS justices

303 Creative v. Elenis was one of this year’s most highly awaited Supreme Court cases. At issue was whether Colorado could enforce a statute compelling a website designer for weddings (or others in similar situations), whose religious beliefs are that marriage is a union between one man and one woman, to create expressive designs for a couple entering a same-sex “union”.

On the final day of its 2022-23 Term, as anticipated, the Supreme Court, in a six-to-three order, aptly interpreted the Free Speech Clause of the First Amendment as prohibiting Colorado from compelling Ms. Lorie Smith, the founder and owner of 303 Creative, to use her expressive, artistic abilities to design a website expressing a message with which she disagreed based on her sincerely held Christian religious belief about marriage. Although the outcome in 303 Creative impacted Ms. Smith’s right to the free exercise of her faith, it is important to keep in mind that religious freedom was not per se at the center of the controversy, as it focused on the right to non-compelled speech.

Amid the of wailing and gnashing of teeth by critics who inaccurately, even falsely, claimed that 303 Creative not only sanctioned discrimination, but also that “it will inspire, discriminatory behavior,” we must be clear about what the Supreme Court did rule. Despite Justice Sotomayor’s assertion that the Court allows people of faith to refuse to serve members of a protected class, 303 Creative did not sanction discrimination. Instead, the Supreme Court followed its own precedent (described below) of banning states from compelling individuals to speak in ways violating their beliefs.

Of course, saner voices heralded 303 Creative as “amazing moment” for free speech that serves as “an important marker protecting religious persons, at least to some degree.”

Regardless of the claims of her critics that Ms. Smith sought to discriminate, the record was clear that she was “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender …,” and she “will gladly create custom graphics and websites” for clients of any sexual orientation.” However, as with Masterpiece Cakeshop v. Colorado Civil Rights Commission, this was not the first controversy in which that public body sought to compel individuals to violate their sincerely held religious beliefs about marriage.

In Masterpiece Cakes, without reaching the merits of the baker Jack Philips’ constitutional challenges, the Supreme Court determined that Colorado officials violated his rights by demonstrating elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection to preparing a cake for a same-sex “union”. Similarly, underlying Ms. Smith claim was her unwillingness to produce content that “contradicts biblical truth” regardless of who orders it [based on her sincerely held religious] belief that marriage is a union between one man and one woman.”

303 Creative began when Ms. Smith challenged Colorado’s Anti-Discrimination Act, which renders it discriminatory and illegal to refuse services to someone based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” In 2016, Smith unsuccessfully sued Colorado’s Civil Rights Commission and Attorney General. Smith and her lawyers advocated the position that being required to prepare a “same-sex wedding” website would violate her First Amendment rights by forcing her to speak (legally referred to as “compelled speech”). Moreover, according to Smith and her attorneys, requiring her to create a website for a same-sex couple would violate her First Amendment right to the free exercise of religion.

In 2019, the federal trial court in Colorado rejected Smith’s attempt to enjoin the statute. Two years later, a sharply divided Tenth Circuit affirmed that Smith could not refuse to create websites for same-sex “weddings” even if it would have gone against her beliefs. While the court thought that protecting diverse viewpoints was a “good in and of itself,” it regarded combatting discrimination “like individual autonomy, ‘essential’ to our democratic ideals.” In a lengthy dissent—essentially anticipating the Supreme Court’s judgment—the Chief Judge of the Tenth Circuit focused on compelled speech, criticizing the panel for taking “the remarkable – and novel – stance that the government may force Ms. Smith to produce messages that violate her conscience.”

On appeal, the Supreme Court agreed to hear Smith’s case limited to the issue of free speech. The question before the Court was “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”

Writing for the Supreme Court, Justice Gorsuch was joined by Chief Justice Roberts plus Justices Thomas, Alito, Kavanaugh, and Barrett. Gorsuch explained that “First Amendment protections belong to all, not just to speakers whose motives the government finds worthy. In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.”

Justice Gorsuch then reviewed three of the Supreme Court’s key precedential cases protecting the rights of individuals to be free from governmentally compelled speech. He began with 1943’s West Virginia Board of Education v. Barnette, wherein the Court affirmed that public officials could not compel students who were Jehovah’s Witnesses to salute the flag because doing so violated their religious beliefs. Next, Gorsuch relied on 1995’s Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, wherein a unanimous Court affirmed the right of the organizers of a St. Patrick’s Day parade in Boston who refused to include a group of gay, lesbian, and bisexual individuals in their event because permitting them to display their message would have “alter[ed] the expressive content of their parade.” The Court also recognized that the organizers had “a First Amendment right to present their message undiluted by views they did not share.” Finally, Gorsuch cited 2000’s Boy Scouts of America v. Dale in which the Court upheld the exclusion of an assistant scoutmaster who was homosexual. The Court found that forcing leaders to have include Mr. Dale would have “interfere[d] with the Boy Scout’s choice not to propound a point of view contrary to its beliefs.”

At the same time, Justice Gorsuch acknowledged that the Tenth Circuit correctly identified Ms. Smith’s reluctance to communicate a message with which she disagreed as “pure speech” which is entitled to the highest level of constitutional protection. Although noting the “vital role public accommodations laws play in realizing the civil rights of all Americans,” even in conceding that Colorado had a compelling interest in preventing discrimination, its interest did not outweigh Ms. Smith’s right to free speech rights, especially because it stipulated, as noted, that she was willing to serve gay customers, objecting only to the message they wished her to communicate. Gorsuch thus reasoned that Colorado could not “force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.”

Justice Gorsuch harshly criticized Justice Sotomayor’s dissent for failing to address the key question of whether a State can “force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?” In a partial rebuttal to Sotomayor’s dissent, he commented that “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.” Justice Gorsuch concluded by emphasizing that “tolerance, not coercion, is our Nation’s answer. 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. Because Colorado seeks to deny that promise, the judgment is … Reversed.”

Near the start of Justice Sotomayor’shyperbolic dissent, which was joined by Justices Kagan and Jackson, absent evidence supporting her claim, she described the outcome as “a backlash to the movement for liberty and equality for gender and sexual minorities.” She then remarked that under the Colorado law Ms. Smith’s the “petitioners’ freedom of speech is not abridged in any meaningful sense, factual or legal. Petitioners remain free to advocate the idea that same-sex marriage betrays God’s laws.”

Ignoring Justice Gorsuch’s balancing of rights, Justice Sotomayor wrote that “Today is a sad day in American constitutional law and in the lives of LGBT people. The Supreme Court of the United States 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. The Court does so for the first time in its history.” She then decried the outcome as having “the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.”

In an attempt to delegitimize the outcome in 303 Creative, after the fact critics such as retired Harvard Law Professor Laurence Tribe raised questions about whether Ms. Smith met the constitutionally required real case or controversy standard. The charge arose in light of a man’s having denied that he ever made such a request and that he was married to a woman; Ms. Smith’s lawyer responded that “It’s undisputed that the request was received…Whether that was a troll and not a genuine request, or it was someone who was looking for that, is really irrelevant to the case.”

This back door attack on the legitimacy of the outcome in 303 Creative and the integrity of the Supreme Court in terms of whether there was a real person who filed a complaint is without merit. Ms. Smith sought a preliminary injunction to block enforcement of the public accommodations law in light of the impact it might have had on her rights to be free from compelled speech, as her beliefs conflicted with the Colorado statute. As any first year law student of civil procedure or Constitutional law would or should have known, claims of this nature are baseless because Ms. Smith and Colorado’s attorneys had already stipulated to the underlying facts.

In addition, because the case passed through all three levels of the federal judiciary, there is simply no ground on which for critics to level their specious attacks on the outcome in attempting to undermine the Court’s authority and legitimacy.

It is important to observe and note the blatant double standard evidenced by the dissenting members of the Supreme Court. For instance, in last year’s Dobbs v. Jackson Women’s Health Organization in which the Justices overturned the judicially created so-called right to privacy and abortion in Roe v. Wade, the dissenters criticized the Supreme Court for overturning precedent as the Court returned the question of abortion to the states because there is no mention of it in the Federal Constitution. Yet, this year, in 303 Creative, Justices Sotomayor and Kagan, who were on the Court last year, joined by Justice Jackson, had no trouble ignoring established stare decises from Barnett, Hurley, and Boy Scouts of America banning compelled speech. It seems that for the activist members of the Court precedent only matters when they agree with their desired outcomes.

The great significance of 303 Creative is that the Supreme Court wisely applied the First Amendment right to freedom of speech, ruling that no one can be compelled to communicate views through the use of their talents—whether in creating websites, baking cakes, or in other ways—if doing so violates their sincerity held religious beliefs. The Court essentially confirmed that while individuals can agree to disagree, they cannot force their ideas on others. Let us hope that people of good faith on both sides of this vital issue will learn that because respect and tolerance go both ways, all can learn to co-exist peacefully, regardless of their views.