It’s the First Amendment, Stupid: Supreme Court Holds That Free Speech Prevails in Challenge to Anti-Discrimination Law

A Politico headline said that a recent Supreme Court decision “limits LGBTQ protections” while an ABC News story told us that it was about whether “businesses can refuse to serve LGBTQ+ customers.”

The decision today in 303 Creative LLC v. Elenis wasn’t about that at all. In this 6-3 decision, the Supreme Court held that the government cannot force you to say something that violates your religious beliefs.

Lorie Smith runs 303 Creative, a website and graphic design company. She wanted to expand her business and start creating custom wedding websites but was justifiably hesitant.

Lorie lives in Colorado, where the Colorado Anti-Discrimination Act prohibits discrimination on the basis of sexual orientation (among other categories) in “places of public accommodation,” such as businesses that provide goods and services to the public.

To be clear, Lorie does business with all people, regardless of their sexual orientation. What she will not do is use her creative talents to express a message that contradicts her personal beliefs. And here’s perhaps the biggest point: She won’t do that for anyone—no matter who they are. She won’t encourage violence or demean another person, or promote atheism, either.

The line she draws has nothing to do with the customer, but with what the customer wants Lorie to express in a website or graphic design. It’s about Lorie’s freedom of speech and nothing else.

Writing for the 6-3 majority, Justice Neil Gorsuch disagreed. In case after case, the Supreme Court has held that the First Amendment not only protects an individual’s right to speak her mind but prohibits the government from compelling her to “speak its own preferred messages.”

Colorado doing so in this context, however, is even more insidious. In this case, the appeals court actually found that, by requiring expression supporting same-sex marriage as a condition of doing business in the state, Colorado was intentionally trying to eliminate “dissenting” (i.e., traditional) ideas about marriage.

Some things should not have to be said, but we are thankful they were.

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