Below is my column in the Hill on the acceptance of a major new case by the Supreme Court on the issue of free speech and anti-discrimination laws. The nomination of Judge Ketanji Brown Jackson of the United States Court of Appeals for the District of Columbia (the subject of today’s Hill column) and the Ukraine war took attention from this addition to the docket. However, this case has the makings of a major course change for the Court.
Here is the column:
“Eliminating … ideas is CADA’s very purpose.” Those words from the 10th Circuit Court of Appeals about Colorado’s Anti-Discrimination Act may be some of the most honest but chilling words ever uttered in a federal opinion. The court ruled that a state could not only compel an artist to speak but could prevent that artist from speaking, too.
The idea being eliminated in this instance is the view of artist Lorie Smith that marriage is “an institution between one man and one woman.” For Smith, it’s an idea grounded in faith, while for her critics, it is grounded in discrimination. Now, her case, 303 Creative LLC v. Elenis, was just accepted by the Supreme Court to determine if that “very purpose” is the very thing that the First Amendment is designed to prevent.
Last year, I described the court’s current session as a “train whistle docket” of major cases that are likely to produce significant changes in areas like abortion, gun rights, and race criteria in college admissions. That whistle seems to get louder by the day. Indeed, this docket is a virtual listing of unfinished business for a court majority that may finally have coalesced around clear standards in areas long left murky by a divided court.
This latest case seems uniquely framed to reinforce free speech on religious values in conflicts with anti-discrimination laws.
Many years ago, I wrote an academic piece on how anti-discrimination laws would inevitably collide with free-speech and free-exercise rights. Those conflicts continued to mount across the country. In 2018, the court was thought to be ready to clarify the applicable standards in the case of a religious cake shop owner who refused to make cakes for same-sex couples. The court ultimately punted in that case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, ruling for the owner yet leaving uncertainty over the constitutional limitations on cities and states under anti-discrimination law.
Smith’s case has long been a focus for some of us. I have written in favor of taking a free-speech approach to these cases rather than treating them as conflicts under the Constitution’s religion clauses. For that reason, one aspect of this grant of review was immediately notable. The court agreed to consider only one 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.”
Both of the questions initially raised by Smith referenced the religion clauses, but the court carefully excised the other claims to focus solely on free speech. That is precisely what some of us have advocated as the best way of resolving these disputes, and it could signal that a new, bright line will be drawn in this case.
It would be difficult to pick a case that more highlighted both the free-speech rights of artists but also the anti-free-speech elements of some of these laws. Smith is an artist and website designer who wants to use her skills to design wedding websites. She is also deeply religious and wants to promote her view of marriage as between one man and one woman. While she (like the Masterpiece Cakeshop owner) said she would work with LGBT customers, she stated that she would not create designs celebrating marriages that violate her religious values. She also wanted to post a statement explaining those values.
I fundamentally disagree with Smith’s views on same-sex marriage and have supported such marriages for decades. However, one’s personal views or values should not matter in determining whether Smith has a right to the expression of her own views as an artist.
That brings us to the most striking aspect of the 10th Circuit opinion. Many past courts have sought to reject these cases as free-speech conflicts or to minimize the degree to which speech is being curtailed or denied. The 10th Circuit was neither evasive nor ambiguous. It agreed that this case involved “pure speech” and that the state was forcing her both to say things she opposed and to not say things she supported. It further agreed that this denial required the satisfaction of the most stringent constitutional standard: the strict scrutiny test. It then said all of that was perfectly constitutional. The court ruled that the state could create a type of “pro-LGBT gerrymander” forcing religious artists to celebrate same-sex marriage while protecting the speech rights of secular artists.
The opinion has other notable elements. For example, it declares that Smith’s designs are “unique services [which] are, by definition, unavailable elsewhere.” Yet, it admits that “LGBT consumers may be able to obtain wedding-website design services from other businesses.” Thus, Smith’s status as an artist works against her. Couples want to force her to celebrate their marriage, relying on her unique artistic skills; either she creates these images for LGBT marriages, or she cannot create such images for any marriages.
After years of obfuscation and avoidance, the court finally has a free speech case without exit ramps or extraneous issues.
Free speech offers a clear path and precedent for addressing these conflicts. For example, a Jewish baker asked to make a “Mein Kampf” cake, or a Black baker asked to make a KKK cake, should be able to refuse those jobs as offensive to them. People may agree or disagree with their values; some may even boycott their stores. However, “public accommodation” should not mean “compelled public speech.” Likewise, it should not allow the government to ban an artist from expressing her views on the sanctity of marriages, even if many of us reject her views.
Colorado’s arguments in the case only heightened free-speech concerns. It stressed that a business is not required to design a website proclaiming “God is Dead” if it would decline such a design for any customer. Yet when Smith said she would not design a website celebrating same-sex marriage for any customer, the state said that was discrimination.
The appeals court resolved this conflict with a bludgeon of a rationale: Some views are simply intolerable. According to the court, an artist espousing faith-based objections to same-sex marriage is simply one of those views that must be excised “from the public dialogue” and “eliminating such ideas is CADA’s very purpose.”
In his powerful dissent, Chief Justice Timothy Tymkovich starts with a poignant quote from George Orwell: “If liberty means anything at all, it means the right to tell people what they do not want to hear.” The Supreme Court will now decide if liberty can exist if you not only are barred from saying things that people do not want to hear but also compelled to say the things that they do.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.