Thomas Gallatin / December 2, 2022

SCOTUS Takes Up Free Speech and Religious Liberty Again

A key case is before the Supreme Court that has significant ramifications for Americans’ First Amendment rights.

The U.S. Supreme Court will soon hear arguments in yet another free speech case from Colorado. In 303 Creative LLC v. Elenis, graphic artist and web designer Lorie Smith is challenging Colorado’s anti-discrimination law, which the state has used to punish businesses that don’t affirm the Left’s homosexual ideology. More specifically, the state has used the law in an effort to compel businesses to affirm homosexual “marriage.” The state has become the Rainbow Mafia.

This case effectively deals with the same issue that has been used to attack cake baker Jack Phillips over his refusal to bake a homosexual-themed wedding cake and later his refusal to create a cake celebrating gender “transitioning.” The Court already ruled in his favor, but too narrowly, which is why another case is before the justices and Phillips continues to be the subject of harassment.

Smith and Phillips have argued that their strongly held Christian beliefs preclude them from using their creative talents to make something celebrating that which goes against their faith and conscience. SCOTUSblog puts the issue succinctly: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”

Objectively speaking, this case should be the proverbial “no-brainer,” not just because the First Amendment clearly forbids the government from prohibiting or abridging a citizen’s rights to freedom of speech and religion, but there is also a long history of the Court repeatedly reenforcing this fundamental American right.

In 1943, the Court emphasized regarding Americans’ free speech rights: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

The right to freedom of speech inherently includes the right not to speak. Americans cannot be forced to say or express support for thoughts, opinions, or ideas with which they disagree. Furthermore, it has long been recognized that speech is not defined merely as one’s spoken or written word, but also includes an individual’s creative or artistic expressions. And there is no limit to how this type of speech is expressed.

What the Colorado government has done with its nondiscrimination law is to step all over the First Amendment in an effort to promote the LGBTQ agenda. The state has effectively said that anyone doing business in the state must not speak out against the LGBTQ ideology but also must lend their voice in affirmation of it.

For both Smith and Phillips, it wasn’t enough for them to indiscriminately serve anyone who came to their shops, which they did. They are also being compelled to use their talents to affirm an ideology antithetical to their beliefs. Colorado is attempting to coerce them into going against their own strongly held beliefs and embracing the government’s preferred agenda.

When conservatives were rightly voicing their objection to Big Tech censorship, the Left loved to assert that since these massive platforms were private companies, they were free to censor at will. Ironically, that same standard suddenly goes out the window when a small business owner refuses to be compelled to lend his or her creative voice to views with which they disagree.

Here the Left pulls out the “discrimination” canard. However, the truth is that no matter what position one takes, there will be discrimination one way or the other — hence the reason the Constitution does not attempt to forbid discrimination. Rather it errs on the side of protecting freedom over seeking to prevent offense or any other litany of speech-related concerns.

The last time the Court had an opportunity to decisively rule in favor of Americans’ First Amendment rights, the justices effectively punted by issuing a narrow ruling that avoided the central issue. Hopefully, this time the Court will put this issue to rest. Furthermore, it would be nice if Colorado’s nondiscrimination law was declared unconstitutional due to its violation of these core rights.

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