The Supreme Court has given itself another chance to say definitively that laws that compel particular forms of expression are null and void. As well it should.
The court agreed Tuesday to consider the appeal in the case of 303 Creative LLC v. Elenis, which is yet another challenge to Colorado’s law penalizing professionals for refusing to violate their religious beliefs. A straightforward reading of the First Amendment should make this an easy decision in favor of the professional — against Colorado’s despotic statute.
The Supreme Court already dodged the direct issue in a famous earlier case about Colorado’s law. In that case involving cake-maker Jack Phillips, the justices ruled that a Colorado commission could not force Phillips to make a cake celebrating a same-sex wedding ceremony — but only because commission members had expressed direct animus against Phillips’s religious beliefs. Having found animus in practice, the court avoided the larger constitutional question about whether a state may compel expression in general, much less expression in violation of one’s religious beliefs.
In sum, the punishment against Phillips was lifted, but the court avoided the question of whether the Colorado law itself was unconstitutional. That left Colorado free to try forcing other professionals to transgress their consciences, as long as the officials enforcing the law weren’t stupid enough to say aloud their bias against the religious beliefs at issue. (Meanwhile, Phillips himself is under renewed assault, but that’s another, albeit related, story.)
Colorado is now using its law against Lorie Smith of a website design company called 303 Creative. Like Phillips, she gladly serves gay customers in general, but she balks only at using her expressive capacities to design notices for activities, from people of any race or sexual orientation, that run counter to her religion — in this case, her belief that marriage can be only between one man and one woman.
In a 2-1 decision with reasoning that is not just wrongheaded but frightening, the 10th Circuit U.S. Court of Appeals ruled against Smith, openly concluding that Colorado’s law “permissibly compels [Smith’s] speech.” In other words, the two judges acknowledged that what was at issue was not just a professional service, but free speech, and yet they ruled that the unwelcome refusal to speak in a certain way could be penalized — even if it was a refusal rooted in sincerely held, widely recognized tenets of faith.
This is bone-chilling.
What we have here is an insistence by government, essentially backed by force of arms, that a private citizen must engage in speech with a particular, government-mandated content, against both her right to remain silent and her right to the “free exercise” of her religion. The judges thus approve a violation of not one but two key parts of the First Amendment.
In his eloquent and wise dissenting opinion, Judge Timothy Tymkovich strongly defended the First Amendment while noting succinctly and inarguably that “the freedom to speak necessarily guarantees the right to remain silent.”
Even apart from questions of faith, Tymkovich noted that the Supreme Court has long established that “compelled speech” is presumptively unconstitutional. That’s why, for example, the high court in 1943 ruled that school children could not be compelled to salute the American flag, and in 1977, it ruled that New Hampshire could not compel the motto “Live free or die” to be displayed on state-issued license plates.
When the speech (or deliberately chosen silence) at issue is faith-based, the protection is doubly important. In all, wrote Tymkovich, governmentally compelled speech represents an “existential threat to the most sacred freedoms.”
This should not even be difficult.
At issue is not a means of sustenance (such as a restaurant) or of shelter (a motel room), not a matter of health or other necessity, all of which would trigger guardrails against discrimination versus a protected minority. Also not at issue is any protected minority itself, as the web designer will serve people of all sexualities and will deny service to those of any sexuality who request expressions against Smith’s established beliefs.
The Supreme Court should use this case to declare once and for all that governmental attempts to compel speech are presumptively unconstitutional and that even any “exceptions that prove the rule” shouldn’t infringe in particular upon the free exercise of religion. Indeed, we all should join in celebrating that the First Amendment is the constitutional, and immensely ethical, embodiment of Thomas Jefferson’s famous vow: “I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man.”
