The Supreme Court will hear oral arguments in 303 Creative v. Elenis on Monday, December 5, and it will arguably be the biggest case of the term.
Why is this case so important — and why should we care?
303 Creative’s owner, Lorie Smith—like other wedding vendors around the country— is a Christian who doesn’t like being told by the government to speak a message that contradicts her deeply held beliefs.
Based in Denver, Colorado, Smith offers creative services—including website and graphic design for her clients. While Smith will accept any client – gay, straight or otherwise — she wants to be able to choose the messages she will promote with her creative skills, and to be able to refuse work promoting messages that contradict her Christian beliefs.
So, why is this a Supreme Court case? Shouldn’t everyone be able to decide how to run their business?
Well, we should be able to, but whether we can, is, unfortunately, a different story at the moment. Take for example the case of Jack Phillips, the Christian baker from Lakewood, Colorado. He was the first “victim” of Colorado’s anti-discrimination law when he declined to make a cake to celebrate a same-sex “wedding.”
Members of the Colorado Civil Rights Commission called Phillips’ religious views “despicable” and compared him to Nazis and slaveowners. Phillips ultimately won his case at the Supreme Court in 2018 because of the religious hostility of the Commission, but unfortunately the Court never got to the core issue in the case: Whether the state’s anti-discrimination law violated Phillips’ right to free speech in the messages he chose to convey through his artistry.
303 Creative tees up the free speech issue directly and could be – in fact, should be – the case that strikes down the grossly abusive Colorado Anti-Discrimination Act that forced Phillips to change his business.
Ultimately, through 303 Creative, the Court will be answering whether or not citizens can substantively disagree — with their actions and words and creative skills — on the morality of same-sex marriage. Which gets to the question of the constitutionality of Colorado’s law.
Smith’s attorneys at Alliance Defending Freedom lay it out in their brief to the high court:
“Colorado asks this Court to allow officials to compel innumerable artists to speak countless messages – from forcing pro-abortion calligraphers to write pro-life flyers to compelling atheist musicians to perform at religious ceremonies.”
Or how about this example: Could the state require a gay or atheist baker to decorate a cake with biblical quotations from Leviticus condemning homosexuality on behalf of a Christian customer?
Some might recognize the latter example as an actual case — once again from Colorado — where the same civil rights commission that criticized Jack Phillips ruled that, when the shoe was on the other foot, the state could not force a different baker to promote an “anti-gay” message on a cake.
When your free speech rights depend on whether you agree with the government’s point of view, something’s gone horribly, unconstitutionally, wrong.
Lorie Smith, the owner of 303 Creative, says that she’s happy to serve all people, including those who are gay or lesbian. She just doesn’t want to promote all messages with her talents.
But that doesn’t seem good enough to those on the Left who would rather see Christians forced out of business than respect their right to disagree.
Many left-leaning state and local governments around the country want to force LGBT ideology on their citizens and they’ve found ways to cut off public debate. They’ve twisted laws originally designed to prevent Blacks and other minorities from being turned away from hotels and restaurants because of their skin color or religion into a tool to guarantee there is no dissent from the currently favored government viewpoints on marriage and human sexuality.
Several cases like this have been bubbling up in the courts over the years. But the Supreme Court has declined, except for Jack Phillips’ case, to even consider them.
This current Supreme Court, however, appears willing to wade into important First Amendment cases. We’ve seen in cases such as a praying football coach, or churches suing because of government-compelled closure during COVID-19, or the rights of religious institutions to define themselves through the employees they hire that the high court has been more receptive to religious freedom and freedom of conscience cases in the last few years.
And in most of these, the government lost, and it wasn’t even close.
All signs are pointing to the high court delivering another win for free speech — specifically speech with a religious flavor – in the case of 303 Creative. A victory for Lorie Smith will send a strong message to governments that want to shut down the cultural debate through coercive anti-speech laws and would create a strong precedent in favor of small businesses to act in accordance with their beliefs.
Colorado — along with other local governments — can yell “discrimination” all they want to justify what are essentially compelled-speech laws, but the handwriting is on the wall at the Supreme Court. Free speech is coming back.
A decision in 303 Creative is expected by the end of June 2023.
Photo from Alliance Defending Freedom.