The Supreme Court stands unyieldingly for First Amendment freedoms
Washington Examiner
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When the First Amendment guarantees freedom of speech, it also guarantees the freedom to be silent. Speech that is compelled is not free.
That should be a simple concept, but for some reason, various localities and government agencies continue forcing the Supreme Court to reassert it. That’s what a 6-3 court majority did today in 303 Creative LLC v. Elenis, upholding a web designer’s right to decide whether to create highly “customized” online wedding registries.
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In doing so, the high court slaps down regimes that continue trying to compel obeisance to leftist orthodoxies without regard to the expressive rights of a free people. The state of Colorado, in particular, has been an egregious violator of protections in, and derived from, the Constitution’s First Amendment. Here, the Supreme Court, which already rebuked the state when it tried to force an artisan baker to make cakes for homosexual wedding ceremonies, again has told Colorado to cease its abuses.
As with cake artist Jack Phillips, web designer Lorie Smith provides a specialized, expressive product, not an off-the-shelf, one-size-fits-all commodity, to celebrate marriages. As part of her faith, she believes a marriage by definition is between a man and a woman, so she does not provide wedding websites for homosexual couples. Yet the way Colorado applies its state law guaranteeing equal access to all “public accommodations” allows for no exceptions for expressive or religious objectors in creative fields.
Indeed, state agents and courts seem to take zealous delight in harassing faith-based artisans. They do so even if those artisans otherwise serve homosexual people and, when conflicted, provide referrals to similar artisans when the artisans’ consciences disallow them from producing the desired product. No matter what the state’s intentions are, this clearly runs afoul of the Constitution and of U.S. founding principles.
“The freedom to think and speak is among our inalienable human rights,” wrote Justice Neil Gorsuch for the majority. “The government may not interfere with ‘an uninhibited marketplace of ideas.’” As in earlier cases where the Supreme Court ruled that government schools could not compel children to salute the American flag or recite the Pledge of Allegiance, Gorsuch wrote, Colorado here has “invade[d] the sphere of intellect and spirit which it is the purpose of the First Amendment … to reserve from all official control.” [Ellipses are Gorsuch’s own.]
Gorsuch forcefully rejected the argument that Smith’s web services somehow are merely technical rather than an expressive product.
“A hundred years ago, Ms. Smith might have furnished her services using pen and paper,” he wrote. “Those services are no less protected speech today because they are conveyed with a ‘voice that resonates farther than it could from any soapbox.’”
Against these free expressive rights, he wrote, Colorado intends to “’forc[e her] to create custom websites’ celebrating” marriages that she does not “endorse.” In doing so, “Colorado seeks to compel this speech in order to ‘excise certain ideas or viewpoints from the public dialogue.’” If Colorado wins, “countless other creative professionals, too, could be forced to choose between remaining silent [or] producing speech that violates their beliefs. … The First Amendment tolerates none of that” state compulsion.
Finally, as Gorsuch noted, a failure to protect Smith’s rights would also leave the state free, if it so chose, to compel Muslims to produce Zionist messages or atheists to paint evangelical murals. The same leftists who support Colorado in this case surely would scream loudly if the shoes were on those other feet.
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It should be noted that while this case technically turned on the free speech part of the First Amendment rather than the religious expression part of it, the latter also is reinforced here by implication. And a day earlier, the Supreme Court upheld a religious liberty claim of a postal worker who refused to work on the Sunday Sabbath. In all, the last several years have seen an almost unbroken string of victories for people, ranging from Catholic nuns to family businesses, trying to assert religious conscience rights against state compulsion.
Each part of the First Amendment is a guarantor that human minds can operate freely. It was a productive week for the court. We are fortunate to have a bench that ensures, against considerable pressure, these rights of ours as free people.