The Supreme Court Has Another Chance to Save the First Amendment

By David Harsanyi

Tuesday, February 22, 2022

 

Simply because a person engages in a commercial interaction doesn’t give that person the right to compel others to say things that violate their conscience. If it does, then the First Amendment is useless.

 

Colorado is notorious for manipulating public-accommodation laws to coerce speech and punish thought crimes. The state’s most famous victim is Jack Phillips, the man who refused to create a specialized cake for the marriage ceremony of a same-sex couple (before gay marriage was even legalized) because of his religious objections. Phillips’s decade-long, and ongoing, struggle against the imperious bigots of the Colorado Civil Rights Commission, and their private allies, has nearly destroyed his business. But this concerted, premeditated effort has not only been intended to punish Phillips. It’s meant to dissuade other dissenters as well.

 

The 7–2 Supreme Court decision in Masterpiece Cakeshop was a narrow legal victory for Phillips, but it largely punted on the question of religious liberty. Now, the Supreme Court has agreed to take on 303 Creative v. Elenis, a case involving a website designer named Lorie Smith, who is challenging the Colorado Civil Rights Commission’s ability to compel her to create websites that violate her religious beliefs. In many ways, the case is similar to Masterpiece Cakeshop, and, so, unsurprisingly, the media have unsheathed the same lazy framing.

 

CNBC, for example, headlined its piece on the news, “Supreme Court takes up clash over Colorado law’s protection for same-sex weddings” — a completely erroneous headline; this case has nothing to do with same-sex marriage laws. The piece goes on to claim that Smith is challenging a Colorado law that “bars businesses from refusing to serve customers based on their sexual orientation.”

 

This is misleading, at best. Smith does not “discriminate” against people because of their sexual orientation. She is in court to preserve her ability not to say things she doesn’t believe. The state of Colorado contends it is empowered to bore into her soul, divine her intentions, and then dictate the words Smith must convey, or it will put her out of business.

 

Reuters says, “U.S. Supreme Court takes up clash between religion and LGBT rights.” This isn’t true, either. First, religious freedom and free expression are both protected under the Constitution, while LGBT “rights” are not. There is no “clash.” Free expression is a protection afforded all Americans. A gay web designer should never be coerced by the state to create a site celebrating traditional marriage if it violates his or her principles. It is only one side in the culture war that seems intent on inducing people to say things they don’t believe.

 

Not only is the Colorado Civil Rights Commission forcing Smith to publish websites that promote ideas that violate her long-held, long-established beliefs; it also prohibits her from even explaining her case on her company’s website. As her lawyers told the justices, Smith hopes to work on celebrating her conception of marriage — a “lifelong unity and devotion as man and wife” — and will refuse to “promote messages contrary to her faith, such as messages that condone violence or promote sexual immorality, abortion, or same-sex marriage.” These are clear, consistent positions that comport with tenets of orthodox Christianity — as well as with Judaism and Islam.

 

Using Colorado’s illiberal logic, a state can compel a religious florist to create a bouquet celebrating abortion because only women, a protected group, can obtain them. Or it could force a conservative cake maker to create Black Lives Matter cakes, because African Americans make up a large part of that cause. (Alas, I suspect many progressives would be happy to enforce these examples as well.)

 

At Slate, anti-speech activist Mark Joseph Stern engages in the usual fearmongering about the slippery slope should SCOTUS stop the government from compelling speech — soon a “racist photographer could refuse to shoot an interracial wedding” or a “hairdresser could refuse to serve Black people.” Now, I realize it’s difficult for those who believe in racial essentialism to comprehend the difference between immutable characteristics and independent thoughts and actions, but no one is asking for the ability to “discriminate” against people for how they are born, but rather for what they want to make her say.

 

That said, there’s no addendum to the Constitution that protects hurt feelings. Even if Smith were a bigot, even if her views reflected an ugly minority view — even if she only wanted to make websites for misandrist chemtrails conspiracists — that’s her business. Free expression isn’t contingent on state approval. And the marketplace is home to thousands of web designers who will create any themed site you can conjure up. Go elsewhere.

 

But since we’re on the topic of slippery slopes, it’s worth noting that the authoritarians on the Colorado Civil Rights Commission not only believe that any consumer should be able to walk into a place of business, but also that certain protected groups of consumers should be empowered to walk into a place of business and dictate what the owner must say. If this is truly the choice (and I don’t think it is), then anti-discrimination laws must be overturned and rewritten in a constitutional manner. One of the fundamental ideals of liberty is that we don’t coerce people to say things — or refrain from saying things — in ways that violate their conscience.