In 303 Creative v. Elenis, Supreme Court Overturns Colorado Law Limiting Free Speech

On Friday, the Supreme Court ended the week by releasing its 6–3 ruling on 303 Creative v. Elenis, which overturns a Colorado law that would “compel an individual to create speech she does not believe.” “Taken seriously, that principle would...

The post In <i>303 Creative v. Elenis</i>, Supreme Court Overturns Colorado Law Limiting Free Speech appeared first on The American Spectator | USA News and Politics.

On Friday, the Supreme Court ended the week by releasing its 6–3 ruling on 303 Creative v. Elenis, which overturns a Colorado law that would “compel an individual to create speech she does not believe.”

“Taken seriously, that principle 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,” Justice Neil Gorsuch wrote when delivering the court’s opinion. (READ MORE: ‘Affirmative Action’ Was Racist from Day One — And It Will Continue)

303 Creative v. Elenis represents a welcome change in tactics among conservatives. Rather than waiting to be sued, Lori Smith and her team at Alliance Defending Freedom went on the offensive.

Jack Phillips Plays Defense

Lori Smith owns and operates 303 Creative, a small website-design company that works one-on-one with clients.

“When my clients come to 303 Creative, what they can expect is someone who cares and has a passion for their business as well. Each and every one of my projects is a reflection of me,” Smith said in a video posted by Alliance Defending Freedom.

Smith planned to expand her business to cater to customers who wanted to create websites for their weddings, but, as an evangelical Christian, she worried that a Colorado antidiscrimination law would require her to create websites that promoted gay marriage — despite her firmly held religious belief that such unions are immoral.

Her concern was not unfounded: In 2017, a Christian baker, Jack Phillips, went to the Supreme Court after being sued under the Colorado Anti-Discrimination Act (CADA) for refusing to bake a cake for a gay couple due to his religious convictions.

Although Phillips won Masterpiece Cakeshop v. Colorado Civil Rights Commission, he didn’t win it for the right reasons. The court punted on the issue of overturning the law and instead ruled that his rights had been violated under the free exercise clause.

Because the Supreme Court failed to overturn CADA, Phillips was again sued, this time for refusing to bake a cake for a gender-reveal party. Earlier this year, he lost that case in a Colorado appeals court. 

303 Creative Chose Offense

Rather than launching the project and waiting to get sued by the Colorado Civil Rights Commission, Smith filed to obtain an injunction allowing her to put a notice on her website that would clarify her religious beliefs and communicate her right to refuse service to anyone who asked her to express messages contrary to those beliefs.

Like Phillips, Smith lost in both the district court and the 10th Circuit — even though she stipulated that she was “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender.”

Smith’s problem wasn’t with her clients but with the messages they could require her to promote. She didn’t want to “produce content that ‘contradicts biblical truth,’ regardless of who orders it.” (READ MORE: Somewhere Over the Rainbow Flag Flies the Banner of Infinite Inclusion)

When the U.S. Supreme Court agreed to hear the case, Smith received widespread support, and not just from fellow Christians. Individuals — including artists, publishers, and legal scholars — as well as groups — LGBTQ advocates and 20 states — asked the court to rule in Smith’s favor.

“Reaching a truce on hotly-debated issues of public concern can be challenging, but it should never come at the cost of forsaking such a fundamental value as free speech,” the United States Conference of Bishops said in its amicus brief. “The Court should do here what it has so often done in the past: apply the Free Speech Clause to protect religious speech thereby strengthening liberty not just for the religious but for all society.”

When the Supreme Court heard oral arguments in December of last year, it was clear that it was concerned about the broader questions raised by the case. During that hearing, Justice Clarence Thomas noted that one complicating factor was the personal nature of Smith’s business, which differed from businesses traditionally considered “public accommodation.”

“This is not a hotel, this is not a restaurant, this is not a riverboat or a train. I’m interested in the intersection of public accommodations law and speech,” Thomas said during the hearing. “If you’re running a train business or a riverboat business, that’s not exactly — that doesn’t implicate speech.” (READ MORE: Supreme Court Sacks Affirmative Action — Here Comes the End-Around)

Justice Sonia Sotomayor, however, framed the case as opening the door to discrimination against gay and LGBTQ Americans.

“Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class,” Sotomayor wrote in her dissenting opinion. “Our Constitution contains no right to refuse service to a disfavored group.”

The problem with Sotomayor’s argument is that while laws preventing discrimination are great, they cease to be useful when they violate an individual’s rights. It’s a case of one man’s rights ending where another man’s nose begins — and that’s a balance that goes both ways.

“Consider what a contrary approach would mean. Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message,” Justice Neil Gorsuch wrote in the court’s opinion. “Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage.”

What is different about Smith’s case is that she never actually denied service to a gay or LGBTQ couple. She hasn’t even launched a service to build websites for weddings. This means that there are no aggrieved individuals on the other side. Smith and the lawyers at Alliance Defending Freedom took the initiative, allowing them to define the issue in a way Jack Phillips couldn’t in 2018. Ultimately, it was a winning strategy in the nation’s highest court.

Aubrey Gulick is a recent graduate from Hillsdale College and the Intercollegiate Studies Institute Fellow at The American Spectator. When she isn’t writing, Aubrey enjoys long runs, solving rock climbs, and rattling windows with the 32-foot pipes on the organ. Follow her on Twitter @AubGulick.

The post In <i>303 Creative v. Elenis</i>, Supreme Court Overturns Colorado Law Limiting Free Speech appeared first on The American Spectator | USA News and Politics.