Hurt Feelings, Conscience, and Freedom – Part 2

Rick Plasterer on June 1, 2023

An earlier article reviewed the crucial 303 Creative vs. Elenis case, pending before the Supreme Court, in which a decision is expected at the end of June. Lori Smith, the proprietor of 303 Creative wishes to expand her web design business to include weddings but is precluded by the Colorado Anti-Discrimination Act (CADA), which would require her to design for same-sex weddings. Since she wishes to communicate through her talent and web designs support for traditional opposite-sex marriage, she mounted a pre-enforcement challenge to the law, supported by the Alliance Defending Freedom, and is offering a free speech claim against the law, holding that it requires compelled speech.

As discussed in the previous article, Professor Robert P. George of Princeton University explained why even the claim of social stigma, which seems to be the real heart of the claim to a legal requirement of compelled speech, cannot stand against free speech doctrine. A variety of organizations and individuals also offered their briefs to the court, and a number of these should be noted.

Supporting 303 Creative are organizations concerned with the effect a decision against Smith and upholding CADA as it’s currently interpreted would have on expressive professionals who are paid for their services yet put their own ideas into their products. Also supporting Smith are religious organizations concerned about the negative effect on religious freedom.

The Threat of Compelled Speech for Expressive Professional Workers

The libertarian Cato Institute, in a brief urging the court to accept 303 Creative’s appeal in October, 2021, said that if the decision against 303 Creative in the federal Tenth Circuit and others like them (such as the New Mexico Supreme Court’s decision against photographer Elaine Huguenin in 2013) stand, it will “end free speech protections for providers of expressive products.” Further, it will erode “the ability of courts to invalidate applications of speech regulations where part of the government’s goal is to punish unpopular ideas rather than solely to protect consumers’ access to products.” As noted an another brief filed in support of accepting appeal (by the Faith and Family Coalition and Jewish Coalition for Religious Liberty) the lower court (federal Tenth Circuit) “openly admits that ‘[e]liminating such ideas is CADA’s very purpose,’ and that its requirement of nondiscrimination in public accommodations ‘compels speech.’”

Cato referred to a decision of more than 40 years ago, Wooley vs. Maynard (1977, which said automobile drivers could not be compelled to display messages they disagree with on their license plates), and that thus “creators’ freedom of mind permits them to refuse to create speech they disapprove of.”

Another libertarian organization (but more associated with the Right), Americans for Prosperity Foundation, observed in its brief that two routes are being taken to overcome the prohibition against compelled speech implicit in the constitutional guarantee of free speech – public accommodation law and anti-trust law.

Regarding public accommodation law – which is generally the way LGBT claims against conscience claims are presented to the public – AFPF said that CADA’s antidiscrimination requirement “most naturally would be read, to protect people and not to compel the design of new products or services.” Going to the heart of problem of “LGBT rights” claims against refusals (which are here appeals to free speech doctrine), the claims fail because they amount to “conflating the artist with the public accommodation and conflating the customer with the product.” Once this is done, the “individual artist may be regulated as a common carrier, and there is no difference between a customer and what the customer purchases.” Associate Justice Neil Gorsuch seemed to echo this in the oral arguments of December 5, when he said about requiring expressive activity in support of same-sex marriage (by analogy of someone paid to write press releases) “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.”

The other route to requiring compelled speech AFPF noted – the use of anti-trust law – is truly ludicrous, as even sources not particularly friendly to social conservatism have noted. It involves saying that Lori Smith has a monopoly on her own products. Thus, a same-sex couple would be denied access to the “market” of Smith’s products. But if the court were to accept this it would endanger all “paid expression and professional speech and create tension with how monopolies are defined and how market power may be remedied—none of which purport to compel speech.”

AFPF also noted the common claim that expressive products are just that – products – and that “‘there is little likelihood’ of the [objectionable] message being attributed to the speaker so the speaker is not endorsing any particular viewpoint. ‘Endorsement,’ of course, is not the test for whether compelled speech can be squared with the Constitution.”

Law and Economics Scholars offered a brief saying that “there was no need to rewrite the law of monopolies to protect disfavored groups. Market forces ensure that consumers will find willing artists precisely because there was no monopoly here. And those same market forces will ensure that only those few artists with substantial conscience objections will seek an exception from antidiscrimination laws.”

Another essentially libertarian brief was presented jointly by law professor Dale Carpenter of Southern Methodist University (who has offered libertarian support for LGBT liberation), law professor Eugene Volokh of UCLA School of Law, who maintains the Volokh Conspiracy legal blog, Ilya Shapiro of the Manhattan Institute (formerly of Cato Institute), the American Unity Fund (which generally supports LGBT liberation but opposes what it considers compelled speech) and the Hamilton Lincoln Law Institute, which is concerned to protect professional workers, consumers, and corporate shareholders from the regulatory state.  

Libertarian opinion has differed regarding what may be a violation of freedom of expression in sexual orientation and gender identity (SOGI) cases. Carpenter and Volokh argued against Jack Phillips of Masterpiece Cakeshop in his claim against having to provide a custom cake for a same-sex wedding, while Shapiro supported Phillips. Shapiro also supported the same-sex marriage decision. All three had earlier supported the New Mexico photographer Elaine Huguenin against having to provide photography for a lesbian ceremony. That all five of these essentially libertarian amici support 303 Creative against CADA’s compelled speech requirement is indicative (along with the Tenth Circuit’s admission of the legitimacy of the government suppressing ideas) of the threat to free speech and the more explicit admission of a state enforced viewpoint.  

Basically, they hold that antidiscrimination law cannot be applied to speech. Thus, “a freelance writer cannot be punished for refusing to write press releases for the Church of Scientology, even if he is willing to work for other religious groups. A musician cannot be punished for refusing to play at Republican-themed events, even if he will play at other political events, and even if the jurisdiction bans discrimination based on political affiliation in public accommodations.” But “there must also be limits set on the variety of conduct compulsions that can be labeled ‘speech compulsions,’ and on the degree and quality of involvement that can be labeled compelled ‘participation’ in a ceremony.”

What qualifies as expression is thus crucial. Web design is expressive enough to qualify as a person’s speech (certainly it involves personal choice as to how best present what the web site features). But a custom-made cake was not expressive enough for Carpenter and Volokh, while it was for Shapiro. Yet all of these things involve professional judgment in making (at least implicit) statements and are thus a kind of speech. They all involve statements about same-sex marriage, which Obergefell promised would be free from coercion. The comment of Kristen Waggoner of the Alliance Defending Freedom, who argued for 303 Creative before the Supreme Court, seems appropriate here. Requiring people to supply expression for ideas they disagree with is a matter of “intruding on the mind and the spirit to force someone to create a message that violates their convictions.”

The Threat of Compelled Speech to Religious Groups

A number of important religious organizations filed briefs in support of 303 Creative. They very reasonably see LGBT liberation claims as requiring complicity in sin, which as this writer has often pointed out, is forbidden by Christ. This does not always involve expression, but expression supporting same-sex marriage is certainly included among the things forbidden by divine commands.

The Becket Fund for Religious Liberty maintained that “religious speech enjoys the highest level of protection available under the Free Speech Clause … Freedom of speech first emerged within the Anglo-American tradition as freedom of religious speech, and religious speech has retained that special role within speech jurisprudence ever since.”

The National Association of Evangelicals offered a brief jointly with the Anglican Church in North America, and several other religiously and socially conservative organizations. It points out that CADA prohibits religious as well as sexual orientation and gender identity (SOGI) discrimination. For instance, “does a public accommodations law prohibiting religious discrimination require a Jewish restauranteur to cater a Muslim gala with the announced purpose of fundraising for a jihad against the State of Israel? It does not, because the restauranteur objects, not to Muslims per se, but to the message of the gala, a message he does not want to facilitate … When a vendor normally serves gay persons but objects to supporting a samesex wedding, it is clear that the vendor objects only to the message sent by the customers’ event; she does not discriminate on the basis of the customers’ status, and so does not violate civil rights or public accommodations laws.”

The brief answers the concern expressed by the Supreme Court majority in Masterpiece Cakeshop that a general religious exemption from SOGI laws would impose a “‘community-wide’ and ‘serious stigma on gay persons’ inconsistent with a purpose of those laws.” It maintained that “the appropriate and fully sufficient responses to the concerns expressed in dicta in Masterpiece are these: (a) it is the speech of the wedding participants that is of controlling importance, not that of the vendor; (b) a vendor by refusing to facilitate a message to which she objects is not discriminating on the basis of status, but message, and, therefore, does not violate the civil rights or public accommodations laws; and (c) even if a vendor’s refusal were construed to be a violation, the government would not have sufficient countervailing reasons to force her to associate with and facilitate the message of a same-sex marriage. ‘Stigma,’ by itself, has never been sufficient to overcome free speech rights.”

NEA et al. also dealt with the issue of racial discrimination. It says that “Black patrons were being discriminated against based on their race, i.e., their status. Here, however, Smith is not discriminating against gays and lesbians at all; rather, she is refusing to associate with a message conveyed by same-sex couples, by Colorado, and by all those associated with the ceremony.”

The racial analogy was also dealt with at length in the brief of the Ethics and Public Policy Center, along with several minority civil rights organizations. “Bans on interracial marriage were the exception in world history. They existed only in societies with a race-based caste system, in connection with race-based slavery … [But] the understanding of marriage as the conjugal union of a man and a woman, on the other hand, has been the norm throughout human history.” EPPC observed that in America, interracial marriage bans began in colonial times, but have no precedent in Western history.

EPPC also quoted the widely noted statement in the Obergefell decision that belief in opposite-sex only marriage is based on “decent and honorable religious or philosophical premises.” Similarly, in Masterpiece Cakeshop and Fulton vs. City of Philadelphia (concerning a Catholic adoption agency) the court was similarly solicitous of religious objections to same-sex marriage. The brief maintained that “if this Court were to rule against Lorie Smith, it would tar citizens who support conjugal marriage with the charge of bigotry … pro-life conscience protections do not undermine women’s equality. Neither do conscience protections for conjugal marriage supporters undermine gay equality. By contrast, conscience protections for opponents of interracial marriage could undermine the purposes of Loving v. Virginia, Brown v. Board of Education, and the Civil Rights Act of 1964: racial equality.”

The brief filed jointly by the Church of Jesus Christ of Latter-Day Saints, the Lutheran Church-Missouri Synod and the Islam and Religious Freedom Team of the Religious Freedom Institute is notable not only for the divergence of religious belief between the amici, but also because the LDS supported the Respect for Marriage Act, in which Congress mandated same-sex marriage nationally. It observed that the court’s pro-LGBT decisions – referring to Romer vs. Evans (1996, which voided a Colorado constitutional amendment prohibiting local homosexual rights ordinances), Lawrence vs. Texas (2003, which voided sodomy laws), and Obergefell vs. Hodges (2015, mandating same-sex marriage) – all expressed respect for religious belief, and at least to some extent, religious objections to homosexuality and same-sex marriage.

Against the common claim that LGBT identities are today “marginalized,” and objection to SOGI categories is an attack on persons, the brief declares that “with malice toward no one, she (Lori Smith) is bravely defying strong popular opinion to remain true to her conscience. In that, she joins an honorable tradition of religious dissent—a tradition stretching back to the Greek tragedy of Antigone. That same tradition includes a biblical account of three men who would not bow to the king’s image … Colorado does not threaten to hurl Smith into a ‘burning fiery furnace.’ But the State does seek to compel her and her business to produce messages that violate her conscience and to censor her religious speech. And that the Constitution forbids.”

Other organizations that have supported social liberalism and secularism in recent decades offered briefs in support of the State of Colorado and its interpretation of CADA. Some of their more notable comments will be reviewed in a subsequent article, along with concluding comments.

The following article can be viewed here.

  1. Comment by David on June 1, 2023 at 7:26 am

    “Those people” may have changed, but Jim Crow in various guises is still supported.

  2. Comment by George on June 1, 2023 at 2:24 pm

    Come on, don’t stop there. Give us a list of what you mean. I grew up in the fifties and sixties down south. Far south. I know what Jim Crow was and is. So don’t just say it’s still supported and leave it at that. Give us the (I’m sure you have many) examples. Come on.
    I want to know what the heck you’re babbling about. Examples and proof???

  3. Comment by Ilya Shapiro on June 1, 2023 at 6:04 pm

    Eugene, Dale, and I (and Cato) actually supported Elane Photography:
    https://www.cato.org/legal-briefs/elane-photography-v-willock

    You may have been thinking of Masterpiece Cakeshop, where Eugene and Dale argued that cake-making wasn’t sufficiently expressive to benefit from free-speech protections.

  4. Comment by Rick Plasterer on June 1, 2023 at 10:09 pm

    Mr. Shapiro,

    I have checked the sources I used and cannot find anything that states the errors you mentioned. It appears that I grossly misread something.

    I have corrected the article. I do apologize for the mistake.

    Rick Plasterer

  5. Comment by Rev. Dr. Richard Allen Hyde on June 5, 2023 at 10:13 pm

    Good article; hard to follow at times, but that is because of the complexity of the cases and my limited attention span. The case seems to me to present the opposite of prior restraint. The Supreme Court is extremely wary of any legislation that attempts to prevent speech before it happens. This case would compel speech, which should be just as suspct.

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