A Huge Win for the First Amendment

National Review Online

Friday, June 30, 2023

 

In the 2018 Masterpiece Cakeshop case, the Supreme Court technically sided with Christian baker Jack Phillips when the Colorado Civil Rights Commission tried to force him to make custom cakes for gay weddings, but the decision was an Anthony Kennedy special — sidestepping the larger issues at stake for a narrow ruling that commissioners demonstrated hostility toward Phillips’s religious beliefs. That left open the possibility that creators such as Phillips could be forced to offer services, provided the commissioners were more careful in public comments. Given the opportunity to correct this mistake, the Court, in a majority opinion written by Justice Neil Gorsuch, knocked it out of the park — smashing the idea that the government could compel speech in the name of civil rights.

 

At the center of 303 Creative LLC v. Elenis was Lorie Smith, a graphic designer who wants to expand her business to include wedding websites. She feared that were she to do so, the Colorado Civil Rights Commission would require her to create wedding websites for same-sex couples, to which she objected. This was not a hypothetical fear: The commission agreed that it had every intention of doing so. In the 6–3 decision, the Court ruled that the commission could not force her, noting that “the First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply ‘misguided.’”

 

Liberals, including the three dissenting judges, have attempted to portray the majority holding as an example of Court-sanctioned discrimination. “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,” Sonia Sotomayor wrote in her dissent. But the decision does nothing of the sort. Smith is perfectly willing to offer her services to gay customers or even gay couples. Before the district court, Smith and the state acknowledged that she was “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender” and that she would “gladly create custom graphics and websites” for any customers, regardless of sexual orientation. There was not a shred of evidence in the record of the case to the contrary, given that the state stipulated to this. But because she has deeply held convictions that marriage should only be between a man and a woman, she does not want to offer her creative services to make custom designs for gay weddings. Doing so would require her to engage in an act of expression against her will.

 

The decision, it should be noted, is not a specific victory for religious liberty, as the challenge focused on the issue of freedom of speech rather than religion. However, that also makes its holdings more broadly applicable, as it does not require business owners to prove that their objections are specifically religious. Under the ruling, it is sufficient for business owners to assert that they do not want to be compelled to advance speech with which they disagree.

 

“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,” Gorsuch writes.

 

In light of this and other recent decisions, those of us who have long sought a Supreme Court that follows the Constitution have a lot to celebrate heading into the Fourth of July weekend.