A simmering, difficult and timely question returns to the Supreme Court this fall: what happens when free speech and civil rights collide?
The court addressed similar issues four years ago in the famous âgay wedding cake case, Masterpiece Cakeshop, Ltd. against the Colorado Civil Rights Commission, about a baker who refused to provide services to a same-sex couple because of his religious beliefs. The justices ruled in his favor, but did so on narrow grounds, avoiding direct constitutional questions about freedom of religion and freedom of speech.
Today, another Colorado case involving free speech and same-sex marriage came to court: 303 Creative v. Elenis. As a professor of law and education which pays close attention to First Amendment issues, I see the case highlighting the tension between two competing core interests â interests that seem to clash regularly in 21st-century America.
On August 30, 2022, for example, another similar case was decided, this time in Kentucky. A federal trial court ruled in favor of a Louisville wedding photographer who sued the city’s “equity ordinance,” which prohibits discrimination based on sexual orientation or gender identity. She argued that the law violated her religious beliefs and her right to free speech, and the court agreed, explaining that “the government cannot force singers, writers or photographers to articulate messages that they don’t support”.
Freedom to speak â or be silent
Graphic designer Lorie Smith is the founder and owner of a studio called 303 Creative. According court documents, Smith is generally willing to serve LGBT customers. However, she intends to start designing wedding websites and is unwilling to create them for same-sex couples, saying it would go against her Christian beliefs.
Below Colorado Anti-Discrimination Lawhowever, it is discriminatory and illegal to deny services to someone on the basis of “disability, race, creed, color, sex, sexual orientation, marital status , national origin or descent”.
In 2016, Smith sued members of the state Civil Rights Commission and the Colorado Attorney General. Smith argued that the requirement to prepare a same-sex marriage website would violate it First Amendment rights by forcing her to speak – what lawyers call “forced speech”.
The constitutional right to free âspeechâ has always been understood to cover a variety of ways people express themselves, including through writing, art, and protest. But not only does it protect the right to protect one’s word, but it also guarantees the right not to speak in the first place.
Through her attorneys, Smith also argued that forcing her to create a website would violate her First Amendment right to free exercise of religion.
Path to SCOTUS
The Colorado Federal Trial Court denied Smith’s request to block the anti-discrimination law in 2019. When she appealed, the circuit court agreed with the previous decision: she could not refuse to create websites for same-sex marriages, even if it would have been contrary to her beliefs.
Protecting a diversity of viewpoints is “a good in itself”, the court wrote, but combating discrimination “is, like individual autonomy, ‘essential’ to our democratic ideals”.
In a long dissentthe Chief Justice highlighted Smith’s allegation of forced speech, criticizing the court for taking “the remarkable â and novel â position that the government can force Ms Smith to produce messages that violate her conscience”.
Smith appealed to the Supreme Court, which in February 2022 agreed to hear his claim, limited to the issue of freedom of speech, not freedom of religion. The question for the nine judges to decide will be âif applying a public accommodations law to compel an artist to speak or remain silent violates the free speech clause of the First Amendment.â
The key to the case?
So how will the judges decide? The Supreme Court may have given a clue to its initial attitude when he announced he would hear the case. The judges focused on a legal standard called âstrict scrutiny,â as they did in its previous case on this issue, Masterpiece Cakeshop.
Below rigorous analysis, the strictest form of judicial review, government restrictions on fundamental rights must be justified by a compelling public interest in order to be complied with. In other words, the restrictions must serve the interests of the government at the highest level and be closely tailored to those goals â in this case, preventing discrimination on the basis of sexual orientation.
But the Supreme Court seemed skeptical about the ability of Colorado’s anti-discrimination law to survive this test, writing“The Tenth Circuit applied careful scrutiny and came to a stunning conclusion that the government could, on the basis of content and perspective, coerce Lorie into delivering messages that violate her religious beliefs and prevent her from explaining her faith.”
When the Supreme Court applies strict scrutiny, it rarely upholds government restrictions on constitutional rights â which could suggest a victory for Smith.
Another possible indication, again in favor of Smith, is in Janus v. American Federation of State, County and Municipal Employees, Council 31, a 2018 case in Illinois involving forced speech. Here, the Supreme Court ruled in favor of a nonunion public employee who challenged an Illinois law requiring him to pay an equitable share of fees to the union representing his coworkers for costs associated with the bargaining process. The court accepted the employee’s claim that because the union was taking positions with which he disagreed, his having to pay the fees violated his First Amendment right as a form of forced speech.
A second chance
On the other side of the controversy is the vital interest of same-sex couples and other members of the LGBTQ community to live free from discrimination based on their sexual orientation.
In a 2019 case, Bostock v. County of Claytonthe Supreme Court interpreted Title VII of the Civil Rights Act of 1964, a far-reaching employment law, such as extending protection against discrimination in the workplace to gay and transgender people. However, the Court has yet to address the conflict of rights at issue in 303 Creative.
The key question therefore seems to be whether individuals can require artists or those who engage in expressive activities to provide their services if this can be considered a form of forced speech, violating their right to silence. on issues with which they disagree. .
Thus, it remains to be seen whether 303 Creative will set a new precedent by balancing First Amendment freedoms while protecting others from discrimination. After all, he avoided constitutional questions in Masterpiece Cakeshop. The court based its decision in favor of the baker on some of the Colorado commission members’ comments on his beliefs. The majority found that these comments violated the state’s First Amendment obligation to maintain religious neutrality while avoiding hostility to faith-based beliefs or viewpoints.
Although the court has not set a date for oral argument and is unlikely to deliver a judgment until its term ends in June 2023, it promises to be one of the most high-profile judgments of the coming year. . And, regardless of the outcome, 303 Creative is likely to generate even more controversy.
Charles J. Russo does not work for, consult, own stock or receive funding from any company or organization that benefits from this article, and has disclosed no relevant affiliations beyond his appointment academic.