The Supreme Court heard oral arguments today in 303 Creative LLC v. Elenis, a case that deals with the clash between public accommodation laws and First Amendment rights and asks whether the government has the right to override the latter in such disputes. Specifically, the court must decide whether the state of Colorado has the right to compel speech from its creative professionals.
The justices appeared to agree 6-3 that Colorado has no such right, despite the state’s best efforts to compare Lorie Smith’s religious objections to a race-based denial of service. As Justice Neil Gorsuch put it, the fundamental question of this case is not a who, but a what. Smith, a graphic designer and the owner of 303 Creative, does not object to serving LGBT clients and has said she would be more than happy to create a custom website for them — as long as that website does not convey a message with which she disagrees.
Though Colorado officials agreed that Smith happily serves clients of all religions, backgrounds, and ethnicities, they repeatedly attempted to tie Smith’s free speech claim to alleged bigotry. Two of the court’s more liberal justices, Justice Sonia Sotomayor and Justice Ketanji Brown Jackson, helped them out on this end, making bizarre hypotheticals about race. “How about people who don’t believe in interracial marriage or people who don’t believe disabled people should be married?” Sotomayor asked. “Where’s the line?”
In another example, Jackson asked whether a photographer who wanted to take pictures with an It’s a Wonderful Life theme could refuse to photograph children of color. At one point she also suggested Smith’s religious objections to same-sex marriage are not legitimate because certain religious institutions used to object to interracial marriage as well.
The problem with this line of reasoning is that it conflates status and speech. Smith is not refusing the customer, she is refusing the message. Thus, the comparisons to interracial marriage don’t add up.
The fact is that Smith would object to creating a website celebrating same-sex marriage regardless of who asked for it. Straight, gay, bi, black, white — it doesn’t matter. She doesn’t believe in same-sex marriage and doesn’t want to be forced to use her creative expression to participate in it, for the same reason that a pro-choice photographer might not want to use her talents to take pictures of the pro-life cause, or a Democratic speechwriter might not want to create messaging for a Republican candidate.
As Alliance Defending Freedom’s Kristen Waggoner so aptly put it in her closing remarks, everyone in Colorado is allowed to speak freely about same-sex marriage except those who object to it. The Biden administration’s Deputy Solicitor General Brian Fletcher even admitted during a back-and-forth with Justice Amy Coney Barrett that a website designer could object to creating a site for a Catholic organization because he disagrees with the church’s views on marriage, but could not object to creating a site for same-sex marriage because religion isn’t a protected status, while sexual orientation is.
Consider just how radical this line of reasoning is. According to the deputy solicitor general of the U.S., the government gets to determine which beliefs are worthy of protection and which ones aren’t.
Gorsuch wasn’t having any of this. In a scathing rebuke to Colorado’s solicitor general, Gorsuch reminded the state that religious beliefs are a protected category — at least in theory — and that the state cannot change a person’s sincere religious convictions. He then pointed out that that’s exactly what Colorado tried to do in the case of cake baker Jack Phillips, who was forced to sit through a “reeducation program” because he disagrees with same-sex marriage. Colorado’s solicitor general denied that this was the case and argued Phillips merely had to undergo “training” to “educate him about Colorado law.” Gorsuch quipped, “Some might be excused for calling that a reeducation program.”
Though religious liberty is certainly an important part of this case insofar as it informs the way Smith conducts her business, it is not essential to the primary question, which is: Can the government compel certain viewpoints from creative professionals? Colorado, backed by the Biden administration, certainly believes so, and more or less argued before the court today that it has the right to turn its creatives into its own mouthpieces and limit what they can say to its own government-approved script.
This isn’t a compelling argument — especially not before a bench that has proved stalwart in its desire to protect Americans’ First Amendment liberties. Let’s hope they put an end to Colorado’s overreach once and for all.
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Kaylee McGhee White is the deputy editor of Restoring America for the Washington Examiner and a visiting fellow at the Independent Women’s Forum.
