After spending over two decades as a full-time litigator, I made a transition to writing and thinking professionally in 2015, effectively ending my legal career. However, every now and then, I find myself immersing back into legal matters. Last year, I drafted an amicus brief for a case known as 303 Creative L.L.C. v. Elenis, arguing that a wedding website designer had the First Amendment right to refuse certain expressions. Recently, the Supreme Court made a decision on this case, ruling in favor of the website designer and asserting that the State of Colorado couldn’t enforce the creation of websites that went against her religious beliefs, such as those celebrating same-sex weddings.
Contrary to popular belief, this case wasn’t about a website designer refusing service to gay customers, which would be illegal and immoral. I would never participate in such a case. Both parties involved agreed that the web designer, Lorie Smith, was willing to work with all individuals regardless of their race, creed, sexual orientation, or gender. She was simply unwilling to design websites that conveyed messages conflicting with her religious beliefs.
The focal point of the case revolved around compelled speech, not the refusal to provide goods or services. The question at hand was whether the government could force a commercial provider of expressive services to create specific content that they found objectionable. The parties agreed that every graphic and website design service offered by Ms. Smith was a form of expression and that her designs were original, customized creations that contributed to the overall message of her business.
It’s crucial to note that the Supreme Court’s ruling in the 303 Creative case does not support or endorse the idea of businesses being allowed to discriminate against customers based on race or sexual orientation. In fact, the majority opinion was written by Justice Neil Gorsuch, who also authored the majority opinion in Bostock v. Clayton County, which extended Title VII protection to gay and lesbian Americans, safeguarding them from employment discrimination.
The crux of the 303 Creative case lay in the concept of compelled speech. The First Amendment safeguards not only an individual’s right to express their beliefs but also their right to withhold speech they don’t concur with. Justice Gorsuch emphasized this in the majority opinion, stating that the freedom to think and express one’s thoughts without coercion is a cherished liberty that strengthens the Republic. When individuals encounter objectionable speech, tolerance, not coercion, is the solution.
The court’s decision in favor of Ms. Smith didn’t establish any new legal precedents. Instead, it simply applied existing decades-long cases that protect citizens from compelled speech. Unfortunately, these clear precedents were muddled by the ongoing culture wars. When people passionately support a cause or community, there is a natural inclination to safeguard their own speech while suppressing opposing views or, in this case, the right of others not to speak.
It’s important to acknowledge that this phenomenon is bipartisan. In certain parts of conservative America, acts of censorship have aimed to silence discussion on race, sexual orientation, and gender identity, which many conservative Americans find distasteful. Two federal courts in Tennessee and Florida, for instance, have struck down restrictions on drag performances, ruling that the states’ attempts to target drag shows violated the First Amendment.
Florida, in particular, has been a significant battleground for unconstitutional culture wars. Governor Ron DeSantis’ administration currently faces court injunctions due to efforts infringing upon private social media corporations’ ability to moderate their own platforms, regulating corporate diversity training, and overseeing university instruction on matters of race.
An essential aspect of American First Amendment law is that it is protected and defended by outsiders—individuals who are often unpopular in their respective communities. Sometimes, this lack of popularity is deserved and long-lasting. For example, when American Nazis demanded to march through Skokie, Ill., public condemnation was justified. However, they still retained their constitutional right to express their views.
However, as time passes, lonely stands can garner more support. When two Jehovah’s Witness sisters refused to recite the Pledge of Allegiance in their public school classroom during World War II, they faced considerable unpopularity. Nevertheless, their bravery resulted in one of the most significant constitutional affirmations in American history, as declared by the Supreme Court in the 1943 ruling of West Virginia State Board of Education v. Barnette: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can dictate what shall be orthodox in politics, nationalism, religion or other matters of opinion, or compel citizens to express their faith through word or action.”
In a nation as polarized as ours, the definition of “outsiders” can differ greatly depending on one’s location. In some communities, conservative Christians may dominate and be tempted to censor objectionable speech in an attempt to protect children or preserve the common good. However, in other communities, those same Christians may find their own speech under attack as hateful or discriminatory.
Consequently, an odd legal reality emerges—an artifact of our divided times. Christians and drag queens, within different jurisdictions and courts, are both safeguarding the First Amendment from the cultural battles. They are both reaffirming a foundational principle of American liberal democracy: even marginalized voices deserve the same civil liberties as those in positions of power and popularity.
Justice Gorsuch eloquently summarized the case in his majority opinion, stating, “In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.” The state does not possess such authority and must not wield it. Allowing this would result in the Constitution being consumed by the culture wars, with our fundamental rights to speak or not to speak dependent on acquiring and maintaining political control. Such a vision goes against the ideals of American pluralism and will not sustain a united, diverse American republic.
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