Religious Freedom and Speech Back at the Supreme Court

By Dov Katzenstein

The Supreme Court, in Capitol Hill, Washington, DC

The Supreme Court, Monday, heard arguments in the latest test of how far the law will go to protect religious traditionalists against the nation’s progressive cultural zeitgeist.

The case, 303 Creative v. Elenis, pits a Christian web designer, Lorie Smith, who wishes to expand her business to include websites for marriages. She is suing her state of Colorado’s civil rights division over a clause that would require her to provide this service for events which violate her religious beliefs.

The case is a part two of sorts to the court’s 2018 decision in Masterpiece Cakeshop, where Jack Phillips, a baker with similar objections found himself on the wrong side of Colorado’s anti-discrimination laws. There, the court ruled 7-2 in his favor on the narrow grounds that the state showed anti-religious animus in its treatment of Mr. Philips. However, as conservative media periodically reports on, the baker is still the subject of coercive efforts by Colorado to make him bend to its social progressivism.

Enter Mrs. Smith, who hopes to get the Justices to rule more broadly that Colorado’s laws constitute “forced speech,” i.e., compelling someone to express a message against their will.

“Cultural whims may shift, but the compelled speech doctrine should not,” Kristen Waggoner, an attorney for Alliance Defending Freedom which represents Mrs. Smith, told the court. “Compelled speech crushes the speaker’s conscience, and it is the tool of authoritarianism, which is why this court has never allowed it.”

The court’s conservative leaning justices seemed sympathetic to Mrs. Smith’s arguments.

Yet, the court’s liberal-leaning members, focused on a different Constitutional red line they indicated a decision for the web designer would cross, discrimination based on status. In several questions, they indicated that protecting refusal to service the events in question would open the door to turning away clients based on race or handicap.

In one exchange, when Mrs. Waggoner argued that her client made her choices based on event not individuals, Justice Sonia Sotomayor responded that she was endorsing offering certain classes of people a “limited menu” of service. 

While focus remained on the limits of how speech is defined verses laws guaranteeing equal access to services, some broader culture war issues reared their heads.

Justice Neil Gorsuch in an exchange with Colorado’s Solicitor General Eric Olson, referred to courses Mr. Phillips, the baker, had been forced to take on anti-discrimination laws, as a “re-education program.”

When Mr. Olsen objected to the term, and reframed it as “a process to make sure he was familiar with Colorado law,” Justice Gorsuch responded, “someone might be excused for calling that a reeducation program.”

In an attempt to illustrate the logical conclusions of the argument Colorado (and the Biden administration which is backing it) is making, Justice Samuel Alito referenced several hypotheticals from a brief in favor of Mrs. Smith’s position submitted by law professor Josh Blackman and attorney Howard Slugh on behalf of Jewish Coalition for Religious Liberty.

“A Jewish man and a Jewish woman, who are engaged to be married, ask a Jewish website designer to build a website to celebrate their [upcoming] nuptials. No problem,” said Justice Alito. “Another Jewish man and a Christian woman, who are engaged to be married, ask a Jewish website designer to build a website to celebrate their nuptials. Big problem…Many Jews consider intermarriage an existential threat to the future of Judaism.”

Presented with the case, Mr. Olsen acknowledged that his state’s position would require the Jewish web designer to provide services for the intermarriage if his services are a general public offering, despite his religious objections to the union.

If the oral arguments are indicative of the court’s thinking, it is likely that Mrs. Smith will prevail, at least with the court’s conservative leaning justices who form a majority of the court for the first time in modern history. Still, their decision will likely speak little of the general rights of religious traditionalists to work according to their beliefs in the marketplace, but define her service as speech and hold that Colorado’s law un-Constitutionally forces her to express a belief that she objects to.

That will leave many other professions whose services cannot qualify as speech unprotected. Justice Brett Kavanaugh pointed to agreement between the opposing sides briefs that “hairstylists, landscapers, plumbers, caterers, tailors, jewelers and restaurants ordinarily wouldn’t have a First Amendment free speech right to decline” their services to an event they objected to.

Some wrangling about the decision among the justices, should they indeed rule for Mrs. Smith, could well focus on whether they explicitly draw a line at professions whose product they consider expression. Even Mr. Phillips’ argument was based on the high level of creativity that went into his cakes, claiming they too constituted speech

The decision is unlikely to be the last of its kind before the court as justices round out the loose ends created by its 2015 Obergefell decision.

Their work comes at an increasingly precarious time for religious traditionalists in America as Congress is all but finished in its passage of the “Respect for Marriage Act.” Both the narrow protections for religious liberty it contains and the significant Republican support for the bill show how strong the progressive cultural headwinds have become against members of traditional religious groups.

Yet, given the constructs of the law and precedents they are up against, plaintiffs and those who support them will likely have to celebrate a win on “speech” grounds, if they indeed get it from the court.

Another twist in the case is the extent to which freedom of expression has increasingly shifted from a left- to right-wing issue in the United States. Not surprising however, as it is a position that any counter-cultural group will likely need to defend itself. An essay in favor of Mrs. Smith’s position by constitutional scholar and former Appeal Court Judge, Michael McConnell, illustrated the point by framing the case in terms that would have seemed most at home in a left-of-center argument only a few decades ago.

“No one has the right to compel other people to use their expressive talents to celebrate their status; civil rights laws have never required this for any protected class and the Colorado law should not have been interpreted to do so,” he said. “The case is really about artistic freedom and the right of people engaged in expressive professions to determine their subjects and perspective. If the State of Colorado can require this web designer to create a website celebrating a message contrary to her sincere beliefs, there will be no end of it.”

To Read The Full Story

Are you already a subscriber?
Click to log in!