The Supreme Court’s ruling is pro-freedom of speech, not anti-gay.
In late June, before adjourning until the next October term, the Supreme Court of the United States (SCOTUS) conducted its annual ritual of handing down decisions in the most publicly contentious cases of the term. While this year’s decisions do not quite rise to the level of last year’s Dobbs case overruling the noxious 1973 Roe decision, at least one case has important implications for religious believers in American public life. In 303 Creative v Elenis, the Court held by a 6-3 vote that a State’s law cannot compel a website designer to create expressive content that she believes is false. Nor can a vendor otherwise be forced to confirm a particular State’s assertion of the truthfulness of moral or religious opinions. While broader than merely religious opinion, the case provides strong protection for religiously motivated individuals and businesses to refuse to participate in government-sponsored falsehood.
Lorie Smith is a website creator in the State of Colorado, operating under the business name “303 Creative”. Among other kinds of websites, Smith desires to begin creating websites for engaged couples to announce and celebrate their upcoming weddings. As an Evangelical Christian, she believes that marriage is only possible between one woman and one man, and thus to create a website for the purported marriage of a same-sex-couple would be to participate in a falsehood. The Colorado Anti-Discrimination Act (CADA) is a statute that prohibits a “public accommodation” from refusing service to anyone based upon (among other things) sexual orientation. Fines for viol-ating CADA range up to $500 per day. Rather than begin creating wedding websites and waiting to be sued by a same-sex couple, Lorie Smith proactively filed a lawsuit against the State of Colorado. Smith alleged that CADA is not enforceable because, among other things, it amounts to “compelled speech”, in violation of the First Amendment to the United States Constitution: “Congress shall make no law … abridging the freedom of speech.”
Having lost her case in inferior federal courts, Smith appealed to SCOTUS, which emphatically ruled in her favour. Writing for the 6-3 majority, Associate Justice Neil Gorsuch explained that “the First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.” This is a broad protection against compelled speech: “All manner of speech – from ‘pictures, films, paintings, drawings and engravings’ to ‘oral utterance and the printed word’ – qualify for the First Amendment’s protections.” Thus, Gorsuch concluded, “no less can hold true when it comes to speech like Ms Smith’s conveyed over the Internet”.
Public reactions to 303 Creative have grossly mischaracterised both the scope of Smith’s lawsuit and the holding of the Court. Beginning with the vitriolic dissent from Associate Justice Sonia Sotomayor, commentators and pundits have falsely claimed that 303 Creative gives Smith the right to discriminate against same-sex-attracted persons. “Today,” asserted Sotomayor in dissent, “the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.” Major media outlets and pundits were eager to follow Sotomayor’s distortion of the case. The New York Times headline declared: “Website Designer Wins Right to Turn Away Gay People.” A Los Angeles Times header trumpeted: “With its 303 Creative decision, the Supreme Court opens the door to discrimination.”
Social media reactions were similar. A prominent Jesuit priest, with a Twitter following of 304,000, parroted this distortion of the case. “I would have more sympathy with web designers who refuse to serve certain people … if those certain people weren’t always same-sex couples,” tweeted Fr James Martin SJ. “Do they … refuse to serve people who are divorced, which Jesus himself condemns? Do the refuse to serve non-Christians … who don’t believe in the Incarnation or Resurrection?” he continues. “Could a Catholic refuse to serve a Protestant?” Fr Martin mischaracterises the facts and legal issues in 303 Creative.
Among the stipulated facts in the case, cited in Gorsuch’s opinion, are that Ms Smith is “willing to work with all people regardless of classifications such as race, creed, sexual or-ientation and gender” and “will gladly create custom graphics and websites” for same-sex-attracted people. She did not desire, and the Court did not find, that Smith can discriminate against people. Rather, SCOTUS ruled that she cannot be compelled to create expressive content. This might include messages that have nothing to do with so-called same-sex weddings, but which by Smith’s light are false or celebrate actions or ideas that violate her religious belief. Put simply, 303 Creative is not an LGBTQ+ decision. It is a compelled speech decision that is both narrower (it does not permit discrimination against protected classes of people) and more expansive (it protects large swaths of expressive content) than much of the commentary claims.
Part of the annual ritual is for SCOTUS to issue opinions and for dissenters to misrepresent both the facts and law of the cases. The latter is especially troubling when the falsifications come from sitting Justices or highly influential Catholic clerics. Thank God, however, that these rhetorical distortions do not affect the Court’s sound decision.
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