In prior columns, academic articles, and my book, “The Indispensable Right, I discussed the never-ending litigation targeting Jack Phillips, the Christian baker who declined to make cakes that violated his religious beliefs.
The case went all the way to the Supreme Court in what many of us hoped would be a final resolution of this conflict. I had long criticized the framing of the case (and other cases) under the religious clauses rather than treating it as a matter of free speech. In the end, the Supreme Court punted in a maddening 2018 decision that technically ruled in favor of Phillips based on a finding that the Commission showed anti-religious bias against Phillips.
In 2023, the Supreme Court delivered a major victory for free speech in 303 Creative v. Elenis, when it ruled that Lorie Smith, a Christian website designer, could refuse to provide services for a same-sex marriage. Justice Neil Gorsuch wrote, “the framers designed the Free Speech Clause of the First Amendment to protect the ‘freedom to think as you will and to speak as you think.’ … They did so because they saw the freedom of speech ‘both as an end and as a means.’”
In the September ruling, the court cited 303 Creative:
“That 2023 decision confirmed this Court’s 2022 interpretation of the First Amendment to bar the City of Louisville from enforcing an ordinance prohibiting wedding photographer Chelsey Nelson from stating her traditional (now dissenting) views on traditional marriage or declining to participate in those ceremonies.”
Louisville is only the latest blue city to spend millions trying to force individuals to create products — from cakes to wedding albums — that violate their religious, speech, and associational rights.
The settlement is a victory not just for Nelson but also for the Alliance Defending Freedom.