The Tyranny of Self-Definition Runs into a Free Speech Wall

The attempt to require public acceptance of same-sex marriage, and behind that, acceptance of homosexuality and the sexual revolution in general, ran into a wall of free speech doctrine and good logical analysis at the Supreme Court during oral arguments on the 303 Creative LLC vs. Elenis case on December 5.

Essentially, requiring social acceptance of homosexuality has been done by requiring complicity in homosexual behavior (in the present case same-sex marriage) using civil rights law. Homosexuality is determined by one’s behavior and inclination, and so conscience objection from it is held to be discrimination against a person where a sexual orientation and gender identity (SOGI) law exists. Conceptually, sexual orientation and gender identity are separable from personal behavior, but LGBT liberation insists that it is inseparable in law, courts have often agreed, and so conscience objection against homosexuality or transgenderism is cast as “discrimination against homosexual persons.”

But free speech, including speech a few or many people find offensive, has been strongly protected by the courts. Sometimes, however, services involving personal expression are offered commercially, and so to preserve free speech, customer status must be separated from an expressive product. The attempt to keep them from separating seemed to flounder under the analysis of the justices.

The case involves a web designer, Lori Smith, who would like to expand her business, 303 Creative, to include web design for weddings. But she does not want to design same-sex weddings, as she wishes in 303 Creative to express support for traditional opposite-sex marriage. This case was reviewed in an earlier article.

Highlights of Arguments at the Supreme Court

During the course of the hearings, Eric R. Olson, Solicitor General of Colorado, responding to Associate Justice Neil Gorsuch, said that 303 Creative is asking for permission “to turn away every single same-sex customer.” He said that that “if you choose to offer a service to someone, you need to offer that service to be done.” But Gorsuch observed that while all of 303 Creative’s customers can ask for whatever they want, “what they might get might be another thing.”

Noting the broad implications of ruling against Smith and requiring forced expression, Gorsuch pointed to an earlier hearing before the Tenth Circuit Court of Appeals in which Olson maintained that an individual could be compelled to write a speech or issue a press release expressing a religious belief he or she disagreed with. Olson also said directly to the Supreme Court that “you can’t say the thing, the message that I object to, that I won’t speak for anybody, is a message that is tied to the customer’s status.”

But Gorsuch would not accept that protected status could force speech. He observed that Colorado’s definition of public accommodation is “very different from the historical understanding of public accommodation.” Traditionally, public accommodations have included such things as restaurants, department stores, public transportation, the like, not expressive professionals such as doctors, lawyers, playwriters, speechwriters, professional counselors, and the like. As an example of the difference between the rights of protected status and message, he said, “I offer to write press releases for anyone. It’s not a who, but it is a what. And the what is, I won’t write a press release that expresses religious views that I disagree with.”

Olson agreed with Gorsuch that 303 Creative is not willing to sell a wedding website to an opposite-sex couple whose union Lori Smith disagrees with. This means the Smith is not discriminating based on sexual orientation, only against state recognized marriages she disagrees with. But Olson said that sexual orientation and expression are inextricably intertwined, whereas with other identities, such as religion, expression is not inextricably intertwined with identity.

But this is nonsense. Expression is just as intertwined with religion as it is with sexual identity, and so is conduct just as closely intertwined. It seems that Olson wants to hold LGBT identity immune from adverse judgment, but not other identities. This is not to say that non-racial categories should exist in antidiscrimination law (which this writer believes they should not), but Olson is making a status not recognized in the text of the Constitution (sexual orientation) superior to one that is recognized (religion), and then holding sexual status more important than free speech.

Olson referred to a decision cited by the New Mexico Supreme Court in ruling against Elaine Huguenin which held “a tax on yarmulkes is a tax on Jews.” But taxing yarmulkes is not expressive activity, which web design is, in addition to being action of the state burdening religious activity, rather than private discrimination against religious activity based on conscience.

Associate Justice Brett Kavanaugh noted an amicus brief from law professors Dale Carpenter and Eugene Volokh who opposed the Masterpiece Cakeshop decision but are supporting 303 Creative, saying that the expression required involves words and is thus compelled speech. Olson, however, maintained that it is not more than incidentally compelled speech.

Brian H. Fletcher, Deputy Solicitor General for the United States, acknowledged the difference the court annunciated in Obergefell vs. Hodges (the same-sex marriage decision) between racism and belief in opposite-sex only marriage, but worried that recognizing a right to decline a same-sex web design out of respect for free speech could lead to differential treatment of races out of concern for free speech. He frankly said that the court should not apply constitutional principles if they produce conclusions that result in racial discrimination.

But against this, it was maintained that if status and expression are inextricably intertwined, then a black photographer might be required by a white customer to take a photograph expressive of racism (because refusal would be racial discrimination against his status as white). This writer would add, as well, that the likelihood of the court’s respect for traditional marriage eroding is much greater than that it will come to respect racial discrimination. Regarding the latter, the Civil War amendments provide a strong constitutional basis for resisting racial discrimination. 

Fletcher also claimed that Justice Amy Coney Barrett’s hypothetical situation of a LGBT group at a college with publishing capacity denying publication of material from a conservative Christian group advocating opposite-sex only marriage would be denial of an objectionable message, not status-based discrimination, although obviously, under the Colorado Antidiscrimination Act (CADA) it would be religious discrimination.

Kristen Waggoner, counsel for the Alliance Defending Freedom arguing for 303 Creative, said in a final statement that “When you have a speech corrector — creator, you’re in a very different space” than when one is simply providing the same product to everyone. That is, simply supplying space for speech, as was required of law schools that objected to supplying rooms for military recruiters in the “don’t ask, don’t tell” era, is not unconstitutional forced speech. But supplying one’s own expression for ideas one disagrees with, as would be required of Lori Smith, is unconstitutional forced speech. It is a matter of “intruding on the mind and the spirit to force someone to create a message that violates their convictions,” she said.

Commentary

Further comments on the case were given in a Heritage Foundation panel later in the day. Sarah Parshall Perry, Senior Fellow at the Meese Center at Heritage Foundation served as moderator. The panel included Jonathan Scruggs, Senior Counsel and Director of the Center for Conscience Initiatives, Alliance Defending Freedom, Erin Morrow Hawley, Senior Counsel, Alliance Defending Freedom, and Roger Severino, Vice President, Domestic Policy, Heritage Foundation.

Perry asked Hawley what questioning she heard from Chief Justice John Roberts that was indicative of the outcome of the case. Hawley referred to the decision Roberts wrote, noted above, FAIR vs. Rumsfeld, which said that military recruiters had to be allowed on the campuses of law schools if they received federal funding. Roberts held that empty rooms cannot speak, and so there was no free speech issue with the schools’ objection to the military’s “don’t ask, don’t tell” policy regarding homosexuality, which existed at the time. But in the current 303 Creative oral arguments, Roberts emphasized that the web designer must put her own heart and hands into creating something that she disagrees with.

Perry then asked Hawley about a case ADF has often referred to as providing guidance for subsequent LGBT cases, Hurley vs. the Irish American Gay, Lesbian, and Bisexual Group of Boston (1995). This was a landmark decision in which the Supreme Court declared that a private organization, the South Boston Allied War Veterans Council, did not have to include the LGB group in its public parade if it conveyed a message contrary to the Council’s wishes. The message of social acceptance of homosexuality was found to be at least part of the significance of including the LGB group, and therefore the Council could not be required to include the group in the parade. Hawley said that 303 Creative is “on all fours” with the Hurley case, as was the World War II West Virginia State Board of Education vs. Barnette (1943) case, which found that Jehovah’s Witness children could not be required to salute the flag. The decision in the latter case included the widely noted dictum that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”.

Implications of Analogies and Hypothetical Situations Assessed

Severino said that crucial in the case is the comparison of traditional marriage to racism. Many hypothetical situations were discussed to analyze the result of free speech in this case, but he said that it is expected that the majority of justices will rule for free speech, distinguishing belief in opposite-sex only marriage from belief in racial inequality. He said that antidiscrimination laws ultimately are based on the outcome of the Civil War, and the attempt to guarantee racial equality. It is very different to say that acceptance of same-sex marriage can be required under the same imperative of equality. This, he said, made the claim of Colorado that belief in opposite-sex only marriage is equivalent to racism “shocking.”

This writer would add that belief in racial inequality is specific to certain times and places, whereas, as Severino pointed out, belief in opposite-sex only marriage has existed universally from antiquity, and only in the last few years has anyone believed anything different.

Hawley said that another crucial factor is distinguishing between speech and conduct. Colorado maintains that businesses open to the public are public accommodations, and anyone who does open a business loses their First Amendment right to free speech in the conduct of their business. The Supreme Court has recognized that web sites are speech, she said, and the same applies to the expressive activity of 303 Creative. Scruggs pointed out the Colorado has agreed that web site creation is expression.

Severino also said that the question of “free speech, status, and conduct” is large in the controversy. He observed that the claim of Deputy Solicitor General Fletcher that expression is inextricably aligned with status (homosexual or transgender), denies any right to dissent from expressing the righteousness of LGBT identity. It could be used to require doctors to perform sexual anatomy mutilating surgery, even on minors. It is a denial, Perry noted, of the promise in the same-sex marriage decision (Obergefell vs. Hodges) that belief in opposite-sex only marriage is “decent and honorable.” This writer would add that it essentially allows people with one belief (self-defined sex) to impose their beliefs on people who believe in natural sex.

Scruggs observed Associate Justice Amy Coney Barrett’s questioning regarding an LGBT web designer being unable to design only same-sex wedding web sites. Colorado admitted such a hypothetical designer would be required provide web design for opposite-sex weddings as well. Similarly, a Muslim web designer refusing to design anything contrary to Islam might be required to design a site promoting Judaism. The real question, Scruggs said, is “how valuable is free speech? How valuable is the right to disagree and hold firm to your convictions?”

Perry asked Hawley about the “dignitary harm” argument against freedom of speech (and religion and conscience) that LGBT advocates have strongly advanced in recent years. Hawley said that Lori Smith serves all people in the general public, but will not express beliefs contrary to her convictions, and also that the U.S. Supreme Court has never found “dignitary harm” to be a compelling state interest against free speech. She added that the same claim was faced in the Hurley and Masterpiece Cakeshop cases.

A questioner asked if a leftist web designer could be required to design a site saying, “Trump won.” Scruggs said not under Colorado’s law, but under its theory, and in nineteen jurisdictions across the country (where ideology is an antidiscrimination category) it would be possible.

In answer to another question, Severino said that if the government may compel speech, it may compel the use of “preferred pronouns” (use of pronouns consistent with self-defined sex). The claim that expression and status are “inextricably intertwined” will result in compelled speech “very soon,” he said. He added that the same “dignitary harm” claim logically applies to religious believers. Their identity is harmed by being required to engage in extensive creative activity and expression of ideas that attack their religious identity.

Scruggs observed the many expressive professionals that there are, such as speech writers, newspapers (or playwriters, educators, mental health professionals, doctors, lawyers, etc.). Persons in all of these groups could be required to carry government speech, expressing ideas they don’t believe, if free speech may be set aside in favor of antidiscrimination law.

This case has exposed the crucial distinction between status and expression. People simply cannot have what they want because of self-defined status. Recognizing this in the case of speech is a very important step in the restoration of personal freedom against the latest whims of the cultural revolutionaries. It might then be possible to go on and recognize the commonsense distinction that social conservatives have long pointed out and sought, between status and conduct. Conscience objection against homosexuality or transgenderism then would no longer be “discrimination against LGBT people.” If the status/message distinction is recognized in a Supreme Court decision, it will be a major step in resolving the conflict between claims of LGBT civil rights and religious liberty.