JOEL B. POLLAK 30 Jun 2023

‘Victory for Free Speech’ at Supreme Court in Christian Web Designer Case

The Supreme Court held Friday that the State of Colorado cannot force a website designer to create messages that support same-sex marriages against her religious beliefs, citing her rights under the First Amendment.

The case300 Creative LLC v. Elenis et al., was decided by 6-3 majority, with all of the court’s Republican appointees siding with the website designer, and all three of the Democratic appointees opposing her suit.

Free speech advocates, such as civil libertarian and George Washington University law professor Jonathan Turley, hailed the ruling:

The majority opinion was written by Justice Neil Gorsuch, who issued the Hobby Lobby decision as an appellate judge and often writes for the court in religious liberty cases. The dissent was written by Justice Sonia Sotomayor.

The case picks up the argument over the First Amendment and same-sex marriage where the Court left off in the Masterpiece Cakeshop case of 2018, when the Court sided with a Christian baker who did not want to prepare a cake for a same-sex wedding. That decision was largely on procedural grounds, and the Court left open the question of whether the state could compel the baker’s participation.

The issue in 300 Creative is slightly different, because it involves the actual expression of words, and because the website designer was happy to work for same-sex couples — just not to create messages that conflicted with her own Christian faith.

Justice Gorsuch reviewed the history of the Court’s jurisprudence on freedom of expression and association. He then wrote (citations omitted):

[T]he First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply “misguided,” … and likely to cause “anguish” or “incalculable grief.” … Equally, the First Amendment protects acts of expressive association. …Generally, too, the government may not compel a person to speak its own preferred messages. …Nor does it matter whether the government seeks to compel a person to speak its message when he would prefer to remain silent or to force an individual to include other ideas with his own speech that he would prefer not to include. … All that offends the First Amendment just the same.

Consider what a contrary approach would mean. Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected

Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The government could require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would make films or murals for other members of the public with different messages. …Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage.

Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider “unattractive,” … “misguided, or even hurtful.” …. But tolerance, not coercion, is our Nation’s answer. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.

While laws against discrimination in places of public accommodation were important, Gorsuch wrote, they did not violate fundamental civil liberties enshrined in the Bill of Rights.

Gorsuch says that Sotomayor’s dissent appears to alter the facts of the case, so much so that “[t]t is difficult to read the dissent and conclude we are looking at the same case.” Sotomayor argues that the Court granted, for the first time, “a constitutional right to refuse to serve members of a protected class,” though the website designer explicitly stipulated that she would serve same-sex couples.

The case is 300 Creative LLC v. Elenis et al., United States Supreme Court, No. 21–476.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the new biography, Rhoda: ‘Comrade Kadalie, You Are Out of Order’. He is also the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.

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