Rejoice!

303 Creative, LLC v. Elena

Supreme Court of the United States
June 30, 2023
Slip Opinion No. 21-476

Americans of all persuasions have cause to rejoice, now that Lorie Smith, a Christian and a Colorado web designer, has prevailed in the Supreme Court of the United States in her action against the State of Colorado, which had sought to use its Anti-Discrimination Act to compel her to design web sites celebrating gay marriage, against her sincerely-held belief that marriage should be reserved for unions of one man and one woman.  The Supreme Court, in a 6-to-3 opinion authored by Justice Neil Gorsuch, held in 303 Creative, LLC v. Elena that Smith’s right of free speech, guaranteed by the First Amendment to the Constitution of the United States, protects her from such action.  By doing so, the Court spared the country a dramatic escalation in the culture wars.

What effect would a ruling in Colorado’s favor have had?

Twenty-one American states have enacted prohibitions against discrimination on the basis of sexual orientation.  Many of those state anti-discrimination laws have religious exemptions, but generally those exemptions apply only to religious organizations, not to individuals or to commercial enterprises, and they only cover employment.  They do not provide exemptions for anyone engaged in the providing of public accommodations, which encompasses essentially every commercial establishment offering goods or services to the general public.

Anyone violating such a law is subject to varieties of penalties.  In Colorado, they are subject to fines up to $500 per violation. The Colorado Commission on Civil Rights can issue cease-and­ desist orders, require participation in mandatory educational programs, and compel the submission of on­going compliance reports to state officials.  There is a right of civil action for those claiming discrimination, leading to compensatory and perhaps even punitive damage awards.  In Oregon, Aaron and Melissa Klein of Sweet Cakes by Melissa were recently ordered to pay $135,000 in compensatory damages for refusing to bake a wedding cake for two brides.  And of course the cost of merely defending against such claims would itself be financially ruinous for most people.

In an earlier Colorado case, baker Jack Phillips declined to bake a cake for the wedding of two gay men.  Phillips was ordered either to violate his faith by designing custom cakes that celebrate same-sex marriages, or to stop designing all wedding cakes, which was a big part of his business. In addition, he was ordered to “reeducate” his staff by teaching them that he was wrong to operate his business consistently with his faith. The state also required Jack to report quarterly any instances in which he has declined a custom cake request and to explain the reasons why.  The US Supreme Court vacated Colorado’s action, but without reaching the merits.  But according to his lawyers at the Alliance Defending Freedom,

The same day the Supreme Court agreed to hear Jack’s first case in June 2017, a local attorney and LGBT activist contacted Jack’s shop and requested a cake with a pink and blue design celebrating that attorney’s transition from male to female. After Jack declined, the attorney who requested the pink and blue cake filed a complaint with the state of Colorado challenging Jack’s decision.

To be sure, the intent of anti-discrimination laws is to ensure that members of particular groups will have the same access to goods and services as anyone else.  But is that their only purpose? 

In his opinion for the Supreme Court in Smith’s case, Justice Gorsuch wrote:

Ms. Smith seeks to engage in protected First Amendment speech; Colorado seeks to compel speech she does not wish to provide.  As the Tenth Circuit observed, if Ms. Smith offers wedding websites celebrating marriages she endorses, the State intends to compel her to create custom websites celebrating other marriage she does not.  6 F. 4^th, at 1178.

Ultimately, the Court could hardly have upheld the statute, considering Colorado’s flagrant contempt for the right of free speech.  When in our nation’s history has a legislative body ever imagined that the Constitution of the United States would remotely countenance such open hostility to the basic rights of its citizens?

Suppose every business offering wedding services of any kind had to make the choice that the State of Colorado sought to impose on Jack Phillips and Lorie Smith: submit, or be driven out of business.  Christian, Jewish, and Muslim bakers, florists, singers, string quartets, and website designers (to say nothing of wedding planners) would be excluded from an entire segment of the economy.  They will find other jobs, you’ll say.  Why should they have to find other jobs?  Is there a First Amendment, or is there not?

And now we know the plans which the LGBT movement has for us.  It is time for them to abjectly apologize to the nation and unequivocally renounce their totalitarian tendencies.

Earlier I claimed that all Americans can rejoice in the 303 Creative decision, and why is that?  How is it that so many Americans can have reached adulthood without learning the hard-won, bedrock principle of the First Amendment, that if you are not free, then I am not free.  If the State of Colorado can suppress my point of view, it can suppress yours.  When I was in law school, so long ago, the American Civil Liberties Union, which filed an amicus brief in this case in support of Colorado, used to teach this.

July 2023

Thomas Alderman