December 6, 2022

First Amendment on Trial

The fundamental rights to freedom of religion and speech are under assault, and the Supreme Court has a decision to make.

Does an American citizen enjoy the First Amendment’s guarantees of religious liberty and free speech or not? It’s not overstating it to say that’s what the U.S. Supreme Court will decide in 303 Creative LLC v. Elenis.

Before oral arguments were heard Monday, our Thomas Gallatin previewed the case last week, calling it the proverbial “no-brainer.” The tone of the questions from the majority of justices indicate they may agree.

The basics are all too familiar: Colorado graphic designer Lorie Smith, owner of 303 Creative, wants to expand her business to build websites for weddings. Rainbow Mafia thugs and their allies in the Colorado state government want to force her to make them for same-sex weddings, which she, as a Christian, believes violate the biblical model for marriage. “Colorado is trying to force me to create custom, unique artwork to promote ideas inconsistent with my faith and the core of who I am and what I believe,” she explained.

“I love people and create for everyone, including those who identify as LGBT,” Smith said Monday outside the Supreme Court. “Like other artists, my decision on what I create is custom and always based on the message, never about the person requesting the message. There are some messages I can’t create no matter who requests them.”

Naturally, Colorado Attorney General Philip Weiser went to great lengths to twist what’s at stake: “We are very concerned that if our side loses in this case, the Court would open up an exemption that would make possible all sorts of professions — photographers, people who make cakes, others who write books — to say, ‘I’m not going to sell to someone based on who they are.’” No, the issue is over what someone believes and does, the choices they make, and the speech they do or don’t convey, not this “who they are” canard that the gender-confused use to cloak themselves with impenetrable anti-discrimination protections.

Justice Sonia Sotomayor predictably agreed with Weiser: Ruling for Smith would mark the first time the Court had determined that “commercial businesses could refuse to serve a customer based on race, sex, religion, or sexual orientation.” Wrong. This is about messages, not who is requesting the message.

According to SCOTUSblog, “Chief Justice John Roberts countered that the Supreme Court has never approved efforts to compel speech that is contrary to the speaker’s belief, and his five conservative colleagues signaled that they were likely to join him in a ruling for Smith.”

The left-wing justices tried to argue via bizarre hypotheticals. What if, wondered Sotomayor, businesses began to refuse serving other wedding customers, like interracial couples or people with disabilities? What if, pondered Justice Ketanji Brown Jackson, a photography business wanted to restrict sepia-toned portraits with Santa Claus to only white kids?

For one thing, it is not conservatives who push boundaries like that. It is progressives who are never done attacking and destroying one societal norm after another. Moreover, (primarily Democrat) discrimination against black people on the basis of their skin color is supposed to be a thing of the past. For another thing, and for the umpteenth time, this case isn’t about “who someone is,” it’s about the choice they’re making and compelled speech to support it. Those hypotheticals are not even in the same ballpark.

Justice Amy Coney Barrett, by contrast, offered relevant hypotheticals: Would Smith create websites for a couple who wanted to feature their relationship’s story even though it began with infidelity in prior marriages? Would she make one for a couple who wanted to prominently state that gender is a societal construct that has nothing to do with their relationship? Smith’s attorney agreed that she would also decline to make those websites.

Justice Neil Gorsuch described Smith as “an individual who says she will sell and does sell to everyone, all manner of websites, [but] that she won’t sell a website that requires her to express a view about marriage that she finds offensive.” Precisely.

Even the Left’s favorite relevant Supreme Court ruling, 2015’s Obergefell v. Hodges, recognizes that First Amendment opposition to same-sex marriage must still be permitted. In fact, insufficient protection of these rights is the biggest problem with the grossly misnamed Respect for Marriage Act working its way through Congress. That soon-to-be law makes the outcome of 303 Creative all the more important.

“Saying anything you like — or refraining from saying whatever you want — is one of the most fundamental rights in a free nation,” argues Bill of Rights defender David Harsanyi. “Without it, the First Amendment is worthless.”

The Bible clearly teaches that marriage is between one man and one woman, and that God made it that way when he created the first man and woman. Christians who believe what the Bible teaches, whose faith in that Word determines their religion, must be guaranteed their First Amendment rights to practice their religion freely and to speak — or not speak — in ways consistent with their faith. Call us old-fashioned, but we don’t believe a person’s decision to violate created norms means they then have the right to compel other people to speak in favor of it. In a better world, all nine justices would agree.

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