Supreme Court to hear free-speech case from Colorado

Written by William C. Duncan

February 25, 2022

In 2018, the U.S. Supreme Court ruled, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, that the state of Colorado had violated the religious freedom of a cake decorator. The baker, Jack Phillips, had declined to make a wedding cake for a same-sex wedding because of his religious beliefs. The Civil Rights Commission had determined he was in violation of the state’s law against discrimination in providing business services.

The court took the case to determine whether the commission had violated Phillips’ constitutional rights: specifically, whether requiring him to help with the wedding infringed his rights to (1) free exercise of religion and/or (2) free speech.

When the court decided the case, the majority determined there was no need to address the free speech claim because the commissioners had demonstrated clear bias against Phillips, due to his religious beliefs, during the Colorado Civil Rights Commission’s proceedings.

That narrow ruling left a couple of constitutional questions unanswered: Without any derogatory statements by commissioners, would a requirement that the baker facilitate the wedding force him to engage in speech or to violate his religious commitments?

This week, the court announced it would be taking another Colorado case that raises one of these unanswered questions.

The case involves a web designer, Lorie Smith, who wants to create wedding websites. As a SCOTUSblog analysis explains:

Because she opposes same-sex marriage on religious grounds, Smith does not want to design websites for same-sex weddings, and she wants to post a message on her own website to explain that. But a Colorado law prohibits businesses that are open to the public from discriminating against gay people or announcing their intent to do so.

Smith argued that applying the Colorado discrimination law to her business would infringe her constitutional rights. The U.S. Court of Appeals for the 10th Circuit rejected Smith’s challenge. Although the majority recognized that the creation of a website was speech, the state had a compelling interest in “protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace.” To the majority it was not adequate for customers seeking a website for a same-sex wedding to go to another provider.

One judge dissented strongly:

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.

The Supreme Court announced it would address the following question in accepting this appeal: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”

The experience of Jack Phillips demonstrates why the court’s guidance would be helpful. As his attorneys explain, even though he won his case in 2018, a private citizen has continued to bring actions against Phillips for declining to make cakes that are at odds with Phillips’ beliefs. These continued legal complaints, and similar ones in other states, will preclude closure for individuals who are uncomfortable providing services at odds with their beliefs.

Ideally, the questions would be settled by specific legislation, where competing sets of interests could be balanced and conflicts avoided. But more likely, in the short term, the court will have to provide that direction.

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