What just happened?
On Monday, the U.S. Supreme Court heard oral arguments in 303 Creative v. Elenis, an important free speech case that involves a wedding website designer and has important religious liberty implications.
What is the case about?
According to Alliance Defending Freedom (ADF) (the law firm defending the plaintiff), Lorie Smith is an artist who runs her own design studio, 303 Creative, which specializes in graphic and website design. A Colorado law is censoring what Smith wants to say and requiring her to create designs that violate her beliefs about marriage. Although she’s willing to serve LGBT+ customers in other areas, she doesn’t believe in promoting the message of same-sex marriages.
When Smith challenged Colorado’s law, the U.S. Court of Appeals for the Tenth Circuit ruled against her, holding that Colorado can force her to create websites promoting messages that contradict her beliefs about marriage.
The defense argued that if the government can compel this type of speech it ‘can do so for any speech, whether religious or political.’
During the oral arguments, the solicitor general for Colorado argued the law “targets the commercial conduct of discriminatory sales and its effect on expression is at most incidental.” On the other side, the representative for Smith argued that if the government can compel this type of speech it “can do so for any speech, whether religious or political.”
What are the legal questions being considered in this case?
The questions presented before the Supreme court are as follows:
1. Whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist’s sincerely held religious beliefs, violates the Free Speech or Free Exercise Clauses of the First Amendment.
2. Whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable under Employment Division v. Smith (1990), and if so, whether this Court should overrule that previous ruling. (In the case of Employment Division v. Smith, the Court ruled that an individual’s religious beliefs do not excuse them from compliance with an otherwise valid law prohibiting conduct that the government is free to regulate.)
What was the reaction of the justices during the oral arguments?
Many observers of the Court’s proceeding noted that the conservative majority seems sympathetic to the arguments in favor of the web designer.
“One can view these websites—or, last time around we had cakes—as either expressing the maker’s point of view or the couple’s point of view,” said Justice Gorsuch during the oral arguments. “And that’s really at the heart of a lot of this.”
Justice Kavanaugh had a similar response, saying, “How do you characterize website designers? Are they more like the restaurants and the jewelers and the tailors, or are they more like, you know, the publishing houses and other free speech analogues?”
As Robert Barnes notes, several of the justices appeared to be “looking for ways to narrow their decision, saying both sides in the dispute agreed, for example, that not all wedding vendors should be allowed to deny service to same-sex couples.”
Why is this case important?
If this case seems familiar, it’s because the Court is being asked once again to adjudicate between LGBT+ interests and the free speech rights of religious artists. The most prominent example came in 2018. In the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court ruled in a favor of an expert baker and devout Christian named Jack Phillips who told a same-sex couple that he couldn’t create a custom cake for their wedding celebration because of his religious opposition to same-sex marriage.
While the ruling was an important win for religious liberty, it didn’t address the underlying issue of whether in the future Christians will be forced by the government to “bake the cake” (i.e., use their artistic talents in a way that violates their consciences). Justice Kennedy, who wrote the opinion of the majority, made it clear that “the adjudication concerned a context that may well be different going forward.”
That was a signal the problem wasn’t going away, as Justice Thomas also made clear. “Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day,” wrote Thomas. “But, in future cases, the freedom of speech could be essential to preventing Obergefell from being used to ‘stamp out every vestige of dissent’ and ‘vilify Americans who are unwilling to assent to the new orthodoxy.”’
Should the government have the power to force an LGBT+ designer to create a website promoting the Catholic Church’s beliefs about marriage? Or a Democratic artist made to design posters promoting the Republican Party?
Thomas’s claim is being tested in this case, as a decision about free speech could determine how Christians can practice our freedom of religion. But this ruling could have major implications for the freedom of expression for all artists. ADF asks whether the government should have the power to force an LGBT+ designer to create a website promoting the Catholic Church’s beliefs about marriage. Or whether a Jewish designer should be forced to create another faith’s promotional flyers because he’d design one for a synagogue? Or a Democratic artist made to design posters promoting the Republican Party?
And as David French asks in an amicus brief in favor of Smith, “If rights of conscience attach to corporations worth trillions, shouldn’t they also attach to a single artist whose alleged ‘monopoly’ is merely in the sweat of her own brow?”
When will the case be decided?
A decision is expected by the end of June 2023.