Free speech case with potential implications for religious (and other) professionals

Written by William C. Duncan

May 26, 2022

As the Supreme Court’s current term is coming to a close, with a few high-profile cases still to decide, the Court is also accepting new cases that will be decided during its next term that begins in October of this year.

One of those cases originates from a dispute that raises free speech and religious freedom overtones. A California web designer, Lorie Smith, has a business called 303 Creative. As described in her petition to the Supreme Court:

Lorie is willing to create custom websites for anyone, including those who identify as LGBT, provided their message does not conflict with her religious views. . . . But she cannot create websites that promote messages contrary to her faith, such as messages that condone violence or promote sexual immorality, abortion, or same-sex marriage. Lorie respectfully refers such requests to other website designers.

Given her beliefs, Smith drafted a webpage that explained these beliefs about the types of messages she would be willing to facilitate and which she would not.

Colorado’s law creates a hurdle, though. It prohibits a business from denying to offer a service based on the “sexual orientation” of the customer and prohibits the business from publishing statements that express an unwillingness to provide the services. Since the Colorado Civil Rights Commission has signaled that it considers beliefs about marriage like Smith’s to be discriminatory, Smith filed suit challenging the Colorado statute.

The trial court ruled in favor of the state and Smith appealed to the U.S. Court of Appeals for the Tenth Circuit. The panel divided 2-1 with the majority siding with Colorado. The majority accepted that Smith’s claim involved “pure speech” and that the Colorado law compelled certain speech. This meant the law would be unconstitutional unless the state could show it had a compelling reason for the compulsion. The majority determined that the state did have such a reason – that potential customers who wanted a website facilitating a same-sex marriage would be deprived of Smith’s unique services if the law did not mandate her participation.

Chief Judge Timothy Tymkovich wrote a strong dissent:

No one denies Lorie Smith’s sincere religious beliefs, good faith, and her willingness to serve clients regardless of race, creed, ethnicity, or sexual orientation. But what she will not do is compromise her beliefs and produce a message at odds with them. The Constitution neither forces Ms. Smith to compromise her beliefs nor condones the government doing so. In fact, this case illustrates exactly why we have a First Amendment. Properly applied, the Constitution protects Ms. Smith from the government telling her what to say or do.

But the majority takes the remarkable—and novel—stance that the government may force Ms. Smith to produce messages that violate her conscience. In doing so, the majority concludes not only that Colorado has a compelling interest in forcing Ms. Smith to speak a government-approved message against her religious beliefs, but also that its public-accommodation law is the least restrictive means of accomplishing this goal. No case has ever gone so far. Though I am loathe to reference Orwell, the majority’s opinion endorses substantial government interference in matters of speech, religion, and conscience. Indeed, this case represents another chapter in the growing disconnect between the Constitution’s endorsement of pluralism of belief on the one hand and antidiscrimination laws’ restrictions of religious-based speech in the marketplace on the other. It seems we have moved from “live and let live” to “you can’t say that.” While everyone supports robust and vigorously enforced anti-discrimination laws, those laws need not and should not force a citizen to make a Hobson’s choice over matters of conscience. Colorado is rightfully interested in protecting certain classes of persons from arbitrary and discriminatory treatment. But what Colorado cannot do is turn the tables on Ms. Smith and single out her speech and religious beliefs for discriminatory treatment under the aegis of anti-discrimination laws.

In February, the Supreme Court agreed to take the case. The petition to the Court had raised two legal questions, one related to free speech and the other addressing religious freedom. The Court agreed only to address the free speech question: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”

Though the case will not focus specifically on religious freedom claims, it will have important implications for religious (and other) professionals who feel constrained by state discrimination laws to share messages at odds with their beliefs and the mission of their businesses.

It could help answer questions that the Supreme Court’s 2018 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission did not. The decision in that case turned on discriminatory treatment of the religious business owner by the Commission. This case should establish whether the state can require creative professionals and businesses to send messages even if it does not express antipathy to the professional or business beliefs.

Thus, the case, though originating from religious motives, could result in important protections for more than just people of faith.

More Insights

Connect with Sutherland Institute

Join Our Donor Network