September 3, 2022

The Freedom to Uphold an Unpopular Opinion

Graphic artist Lorie Smith is asking the Supreme Court to safeguard her freedom to design only websites that convey a message she can support.

Lorie Smith is a graphic artist and Web designer in Colorado who wants to expand into the field of custom-made wedding websites. Under the Colorado Anti-Discrimination Act, such a business would be considered a “public accommodation,” which may not refuse to serve customers on the basis of sexual orientation. As Colorado officials interpret the law, if Smith offered her services for weddings between men and women, she could not lawfully refuse to do so for same-sex weddings.

That’s a problem for Smith. She opposes same-sex marriage on religious grounds and does not want to design websites promoting something she believes is wrong. Colorado acknowledges that she “will gladly create custom graphics and websites” for LGBTQ+ clients and that she objects only to using her talents to create content that violates her religious beliefs. The state maintains, however, that she may not pick and choose: If she wishes to design websites for traditional weddings, she must be willing to do so for gay and lesbian weddings.

Smith’s case is now before the Supreme Court. The justices have agreed to settle a question they ducked four years ago in a similar Colorado case, that of specialty baker Jack Phillips, who was punished because he declined to design a cake to celebrate a same-sex wedding. In a 7-2 decision, the high court ruled in Phillips’s favor, but the opinion by Justice Anthony Kennedy was very narrow. It avoided the free-speech issue, and focused instead on the overt hostility shown by Colorado officials toward Phillips’s religious beliefs.

Now the court seems ready to squarely face the hard questions: Under the First Amendment, can artists and custom designers be compelled, on nondiscrimination grounds, to express a view of which they disapprove? More broadly, when an individual’s right to free speech conflicts with a compelling government or social interest, which takes priority?

Though the First Amendment was ratified in 1791, it was only 80 years ago that the Supreme Court began to grapple with such questions in earnest.

In 1942, the state of West Virginia enacted a law requiring teachers and students in all public schools to regularly salute the American flag and recite the Pledge of Allegiance. Refusal to do so, the law stipulated, would be “regarded as an act of insubordination, and … dealt with accordingly.”

Such mandates were popular — the nation was at war and patriotic sentiment was intense. There was widespread, often vicious, hostility toward anyone unwilling to pledge their loyalty to the flag. But for Jehovah’s Witnesses, a nontraditional Christian sect, saluting the flag was not possible: According to their religious understanding, doing so was tantamount to idolatry. When children from Jehovah’s Witness families declined to salute the flag, they were expelled from school. Officials threatened to send them to juvenile reformatories. In some cases, the parents of such children were prosecuted for causing delinquency. Witnesses’ houses of worship, called Kingdom Halls, were burned. Individual believers were beaten, mutilated, or lynched.

It was against that background of intolerance that Walter Barnette, a Jehovah’s Witness from Charleston whose daughters had been expelled from school, challenged the flag-salute law in federal court. The Supreme Court had previously upheld such laws as constitutional, but now it had a change of heart. Overruling its precedent, it struck down the West Virginia law as unconstitutional — not on the grounds of religious freedom but of free speech. In an epic decision, Justice Robert Jackson declared that the protection of conscience and the right of dissent went to the very core of the First Amendment — above all when the stakes were greatest.

“Freedom to differ is not limited to things that do not matter much,” Jackson wrote. The real test of that freedom “is the right to differ as to things that touch the heart of the existing order.”

Then came one of the most lyrical and stirring passages ever penned in defense of free speech:

“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.”

With those now-famous words, the Supreme Court established what scholars call the “compelled speech doctrine” — the principle that government cannot force someone to express or endorse an opinion unwillingly. Nor can the state penalize citizens for refusing to articulate or affirm a view with which they disagree.

West Virginia v. Barnette was the first great landmark in the court’s compelled-speech jurisprudence. Another was the 1977 case of Wooley v. Maynard, which involved a New Hampshire couple (also Jehovah’s Witnesses) who objected to displaying their state’s motto, “Live Free or Die,” on their license plates. When George Maynard covered up the offending words on the license plates of his family cars, he was arrested, prosecuted, convicted, and sentenced to prison.

Eventually the case reached the Supreme Court. New Hampshire was ordered to stand down. “The First Amendment,” declared Chief Justice Burger’s majority opinion, “protects the right of individuals to hold a point of view different from the majority and to refuse to foster … an idea they find morally objectionable.”

If that was true when it came to words on a license plate, a standardized text that no one would take for the personal views of a car’s owner, surely the First Amendment’s protection is far stronger when it comes to the uniquely expressive work of an artist, author, or custom designer. There are plenty of off-the-shelf options available for couples who want to set up a wedding website with a minimum of fuss and expense. What Smith wishes to offer is very different: websites individually tailored to each engaged couple that reflect the creativity, expression, and artistry of Smith herself. Can Colorado force her, as a condition of entering the wedding website business, to employ those talents in a way that violates her religious convictions? No more than Barnette’s daughters, as a condition of attending school, could be forced to salute the flag.

If anyone was sympathetic to the competing interests at the intersection of antidiscrimination law and the right to free speech, it was Justice Kennedy. He was the author of the court’s opinion in Obergefell v. Hodges, which held that the right to same-sex marriage is guaranteed by the Constitution and may not be denied by any state. Nonetheless, his decision stressed that those “who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.” He went on to underscore that the First Amendment rights of Americans who disagree with same-sex marriage must be “given proper protection” by government.

Gallup reported this month that support for same-sex marriage is now at 71 percent, an all-time high. Smith is part of a shrinking minority, her views on marriage increasingly disfavored. But the First Amendment is not in the Constitution to shelter popular opinions. It is there to make sure that people with unpopular opinions are never forced by government to deny those opinions or express a view against their will.

Colorado may disagree with Smith’s ideas. But it has no right to compel her to recant. It’s now up to the Supreme Court to make that clear.

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