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SCOTUS 303 Creative Decision Affirms that the Law Cannot Compel Opinion

SCOTUS 303 Creative Decision Affirms that the Law Cannot Compel Opinion

Indeed, at its core, 303 Creative v. Aubrey Elenis was not about whether a business may discriminate because of its own beliefs, but rather whether the state may compel speech of a particular opinion even out of a desire to achieve equal access in the marketplace.

The left’s response to the decision in 303 Creative v. Aubrey Elenis has largely been screeching that the Supreme Court has authorized open discrimination and the violation of “equal rights.” Despite progressives casting the case as being all about a graphic designer refusing to serve a particular community, the ruling was grounded in the stipulated fact that the creation of a website is an expressive act. That leaves no doubt that the law cannot compel an opinion in the marketplace—no matter how unpopular it may be.

As such, 303 Creative v. Aubrey Elenis was about nothing less than how far free speech extends in the United States. And thankfully, the court reaffirmed that our republic is still in the business of advancing, not curtailing, expression, for the act is key to our experiment in self-governance.

This case arose from the desire of Denver-based graphic designer Lorie Smith to expand the services of her business, 303 Creative, to couples seeking wedding websites. At the same time, she, an evangelical Christian, knew that her unwillingness to betray her belief that marriage is between one man and one woman would expose her to liability under the Colorado Anti-Discrimination Act’s (CADA) exceedingly broad definition of a “public accommodation.” And potential penalties would have included fines, cease-and-desist orders, participation in mandatory educational programs, and submission of ongoing compliance reports.

Smith wisely preemptively sued the Colorado Civil Rights Commission and other state officials in an effort to prevent the application of the CADA.

Importantly, the Supreme Court’s ruling in her favor last week stemmed from a number of stipulated facts—facts that both the plaintiff and the defendant accepted as true. The court noted that both parties acknowledged that:

Ms. Smith is “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender” and “will gladly create custom graphics and websites” for clients of any sexual orientation; she will not produce content that “contradicts biblical truth” regardless of who orders it; Ms. Smith’s belief that marriage is a union between one man and one woman is a sincerely held conviction; Ms. Smith provides design services that are “expressive” and her “original, customized” creations “contribut[e] to the overall message” her business conveys “through the websites” it creates; the wedding websites she plans to create “will be expressive in nature…”

Justice Neil Gorsuch delivered the court’s majority opinion. “The First Amendment,” he wrote, “prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which that designer disagrees.” The opinion is consonant with nearly all of the 10th Circuit’s analysis of the case, stressing that Smith’s wedding websites were indeed creative and highly personalized. That means, crucially, her websites would be classified as “pure speech” rather than “ordinary commercial goods.”

As for the State of Colorado, it sought, the court continued, to compel speech in order to eliminate certain ideas from public discourse. “Indeed,” Gorsuch wrote, “the 10th Circuit recognized that the coercive “[e]liminati[on]” of dissenting “ideas” about marriage constitutes Colorado’s “very purpose” in seeking to apply its law to Ms. Smith.” A goal that, if achieved, would leave to the whims of the state whether speech in the marketplace is allowed.

Unlike the decision reached by the 10th Circuit Court of Appeals, the Supreme Court’s decision was rooted in the stipulations above and a series of precedents that prevent the government from compelling speech of particular content and opinion.

In referencing West Virginia Bd. of Ed. v. Barnette, and the case law surrounding it, Gorsuch argued that “Colorado seeks to put Ms. Smith to a similar choice: If she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs… Under our precedents, that ‘is enough,’ more than enough, to represent an impermissible abridgment of the First Amendment’s right to speak freely….” No matter how laudable the goal of any particular idea may be, being compelled to parrot only opinions approved by the state as a prerequisite to both speaking and to doing business is only a hollow shell of free speech.

Writing in dissent, Justice Sotomayor argued that, the stipulations notwithstanding, the websites that Smith sought to sell are ordinary commercial products that are not protected as pure speech, and, therefore, any infringements are incidental and allowed.

In response, the majority opinion correctly argued that selling a service is not sufficient to classify it as an ordinary commercial good, noting that many great artistic endeavors have been carried out with the expectation of payment. They further returned to the stipulations of fact, including that Smith was willing to sell her services to anybody until their requests required her to engage in speech that was contrary her deeply held beliefs. They argued that Colorado is not seeking to “ensure the sale of goods or services on equal terms,” but the state is compelling “an individual to create speech she does not believe in.”

If the arguments raised in the dissent had been broadly accepted, warned Gorsuch, the “government may compel anyone… to accept all commissions on [a] topic–no matter the message–if the topic somehow implicates a customer’s statutorily protected trait.” Indeed, at its core, 303 Creative v. Aubrey Elenis was not about whether a business may discriminate because of its own beliefs, but rather whether the state may compel speech of a particular opinion even out of a desire to achieve equal access in the marketplace.

Claims, primarily made by the left, that free speech doesn’t extend to the marketplace—that the power of government to limit expression is virtually unlimited—are utterly wrong. Fortunately, the court recognized that pure speech in the marketplace is still speech, and, thus, is deserving of constitutional protection. That would seem to be a no-brainer. But, as we’ve too often seen in this age, even our foundational traditions and institutions are far from sacred.

Dr. Ryan M. Yonk is Senior Research Faculty at the American Institute for Economic Research.
Lauren Frazier is a research intern at the American Institute for Economic Research and an Economics student at Truman State University.


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It’s always analyzed with respect to what remaining protected right trumps loss of freedom of association in the civil rights act. Freedom of association was supposed to be a protected right, and that lies at the bottom of this thicket of troubles.

The civil rights act ought to have eliminated freedom of association only in monopoly markets (whether de jure or private associations enforcing it), under some kind of narrow scrutiny that ought to have been applied.

Simply put, you cannot deny service simply due to a person’s skin color, sex, or whatever, but that you cannot demand people express themselves they way you demand. What is so difficult about this concept? Of course some demand that you must do or say things their way so they consciously conflate these two concepts. After all, speech they do not like is “violence”.

AF_Chief_Master_Sgt | July 17, 2023 at 8:54 am

There is a simple solution to this issue. If you want a website, a cake, or any other item that violates someone’s 1st Amendment rights, then you are free to go to any other website designer, baker, etc., to have that created.

You do not have a right to compel someone to express your ideas and claim it is discrimination, if it imposes on someone’s 1st Amendment rights.

Once the government insinuates itself into the realm of free speech and religious liberties, it violates the Constitution.

It is telling that none of these people who have their panties in a bunch have gone to a Muslim baker or website designer and sued them to force them to validate their mental deficiency.

The decision should have affirmed that you have a right to speech and association and everything else, regardless of whether you open your doors “to the public.” Just offering services to anyone who wanders by does not make you liable to anyone else’s beliefs or anything. Period.

I’m beginning to think that The Three Progressive Stooges are stupid considering their latest farcical dessents

    BierceAmbrose in reply to diver64. | July 17, 2023 at 9:09 pm

    The Three Stooges are just playing the same way they’ve played all their careers. They’re doing just as you’d expect from their hearing performances. The Screaming D’s voted them in on party unity. The Feckless R’s thought it was about principle, and broke ranks on top of that.

    How does this come to be?

    To The Relentless Progs, The Supremes aren’t about findings per the law as written. They are just an arm of orchestrating government to forward The Great Agenda. The Three Stooges are doing their part on that. The Six Who Must Be Destroyed are doing the other thing.

    How does this come to be?

    The Relentless Progs have been marching through the institutions for a bit over a century. They’re not used to anyone noticing, anyone not already in the collective seeing their actual words, any recollection through time.

    — They live in the eternal, timeless now.

    — They live in the spin of the moment.

    — They live in the glow of mutual, shallow, feel-good adulation. Let’s make sighs! Oh, such fun picking the right shade of glitter! (Really, the Seattle Autonomous Zone was a back yard camping exercise, infiltrated with a few pimps, thugs, and ad hoc robbery crews.)

    — They’ve not been opposed by people who see what they are doing. This has made their useful idiots lazy and stupid.

    The question is, what will the people who notice do now? The Tea Party 1.0 was people with greivances and goals playing by the civics rules they learned in school. We saw form that that the game in practice is insiders vs. outsiders, with ever more for the insiders to rake off, the more the system controls. The Relentless Progs have an agenda, a world view. Civics is just one mechanism to advance it — discarded if it does not. Citizens are just fodder for their vision — willingly, in the system, or consumed to feed it if not.

    Now, we know. In case we forget, The Three Stooges proclaim the game every time they lose a decision. So what do we do, now that we know?

    mcrognale in reply to diver64. | July 18, 2023 at 9:05 am

    I refer to them as the “worthless broads”. Kagan and Sotomayor were installed on the court in anticipation of President Hillary. Their sole purpose was to ensure the legacy of Obama, the traitor. Jackson was selected on the color of her skin and her genitals. She has no “content of character” as she amply demonstrated during her confirmation hearings. I thank Almighty God, every day, that Trump was president. May He grant that Trump be re-elected next year.

Masterpiece Cakeshop SHOULD have done this years ago, but SCOTUS was too cowardly to actually issue an opinion.

E Howard Hunt | July 17, 2023 at 12:37 pm

I simply adore that Roberts cake photo at Martha’s Vineyard.

The same logic applies to the ridiculous “preferred pronouns” nonsense and the entire transgender push.
Does it not?

E Howard Hunt | July 17, 2023 at 12:57 pm

She could have accommodated both her morals and her customers- http://www.totallybogusabomination.perv

I disagree with this ruling.

The woman wasn’t being asked to express her own thoughts or beliefs (nor to alter them), she was asked to put someone else’s expression into a form that the requestors were unable to shape for themselves. Nobody was asking her to surrender or alter her own beliefs, nor was anyone seeking her approval or concurrence with their own. Had she done the work, her beliefs would have remained intact and she would have suffered no injury. The gay wedding web site would not have an expression of her own beliefs and she was not asked, nor would she have been paid, for her approval of the content of the site nor the ceremony it announces.

Her business license was issued by the state not only for her own benefit, but for the benefit of everyone in the community she may serve who has the ability to pay for her services, and who is not barred by law from access to those services (such as would be the case with a tattoo parlor or cigarette vendor).

Note that as a person who always goes armed in public, I have been ejected from some businesses for exercising my rights. I also believe this is wrong. Can a business turn away someone for displaying outward signs of their religious beliefs (such as wearing a kippah, for a Jew, or a full beard, for a Muslim)? Absolutely not. (Divesting the religious of their outward signs of their belief actually does not alter, nor separate them from, their beliefs, while insisting that I must be unarmed to enter a place of business actually requires me to surrender my right to arms, even if only temporarily.) Serving those people (including me) in no way is an indication of the shop owner’s approval of, or agreement with, the rights his patrons choose to exercise.

    txvet2 in reply to DaveGinOly. | July 17, 2023 at 2:19 pm

    I would reluctantly agree with your right to carry even if the property owner forbids it, if you agree that he has the equal right to consider you an armed robber and blow you out of your socks.

    denizen in reply to DaveGinOly. | July 17, 2023 at 2:42 pm

    The parties stipulation precludes your interpretation. The parties agreed that the website was her own expression. Once the trial court accepted that stipulation, there was no basis of which I am aware to disregard it on appeal. Nor did Sotomayor suggest that any such basis existed, instead pretending that the stip didn’t exist.

    I believe that the best understanding of whether building a website is an expression of the content that the website contains could be relitigated in the future. So I don’t think that 303 Creative stands for the proposition that building a website is expressive conduct. Instead, I read it as saying no more than the obvious—that the government can’t compel businesses to express messages that the government prefers. I have no idea how anybody could possibly disagree with that principle and yet the leftists did. If you have your perspective, you should say that 303 Creative was correctly decided but is a narrow decision reliant on the stip.

    henrybowman in reply to DaveGinOly. | July 17, 2023 at 2:44 pm

    “Her business license was issued by the state not only for her own benefit, but for the benefit of everyone in the community she may serve who has the ability to pay for her services”

    Sorry, the ordure is deep with this one.
    Her business license was issued by the state solely for the benefit of the state.

    Like your “license to carry a firearm,” that you may have, depending on your state… to quote Tony Lake of GOAL (MA), “I for one don’t need any gun license, I don’t want it, and it doesn’t provide anything for me.” Now demonstrably proven by over half the states in the Union, those which have eliminated this rights-sucking waste of paper in favor of no license at all.

    Licensing serves zero practical purposes to benefit the public. It most assuredly does not assure competence. The only practical purpose it has is to assure that the “licensee” pays regular tribute to the state, under pain of losing one’s livelihood.

      I will slightly disagree on the permit issue. It is a (as of right now) good way to demonstrate to other states that you’ve made a good faith effort to show you’re not a prohibited person.

      As some may recall, I am, however, actually a big fan of doing the opposite – marking your DL if you are a prohibited person. That way everyone can otherwise assume you’re not. And that I think it should also show you have demonstrated safety with a firearm in a statewide-required course (because if you’re in the militia, we don’t want you hurting yourself or fellow militiamen). Note, that’s not a required-to-carry course, but one required of everyone in the state – and if you fail horribly (say, shooting your RO) then you get that “prohibited person” tag on your DL. And I think this course should be mandated in public schools (with opt-out for conscientious objectors to take an EMT course, instead – and get the “prohibited person” tag on their DL).

        geronl in reply to GWB. | July 17, 2023 at 4:17 pm

        I shouldn’t have to demonstrate anything to other states and why would this be on a drivers license?

          GWB in reply to geronl. | July 17, 2023 at 4:34 pm

          Driver’s License so no other tracking/ID is needed. (Your DL also serves as an organ donor card and, in some states, as an ID for voting.)
          Why shouldn’t you have to demonstrate something to other states if you want to carry in their state?

          Now, if you want to argue that “Constitutional carry” should be the law in every state, that’s fine. But it’s not the current state of affairs. Being able to say “Hey, see, I can prove my state says I’m good to go” is not a bad thing.
          (And why so many defense folks say “Go ahead and get a carry permit in your home state.” So, when you travel, and all they know about you is that you’re not from around there, you can stop any hassle.) It, obviously, in the current state of affairs, doesn’t help everywhere.

        henrybowman in reply to GWB. | July 18, 2023 at 3:16 am

        Yes, I agree with all that, as a RVer who plies the lower tier of states regularly. However, most of those states, at least, are in the process of solving this the right way — I no longer need a piece of paper from my state to keep them happy, because they are one by one discontinuing their own paper, as mine did.

    alien in reply to DaveGinOly. | July 17, 2023 at 2:45 pm

    So, IOW and shorter — “Bake the cake, bigot?”

    gospace in reply to DaveGinOly. | July 17, 2023 at 11:29 pm

    Hey Dave. Explain why one needs a business license to conduct business.

      Better yet, explain to me why I have to get “approval” to do anything in, on, to, or around my own darned house. We are far to “managed” for my liking.

      (btw, just responding to gospace here, no idea what this particular thread is about since I am reading comments in the dashboard, and they are not threaded. I am just currently ticked off that I cannot put my own shed where I want it on my own property. Because regulations. Grr.)

      henrybowman in reply to gospace. | July 18, 2023 at 3:19 am

      I’m happy to live in a state where that simply isn’t true. If I were a doctor, or a professional structural engineer, or a hairdresser, I would, for some reason that I believe is more dependent on other states doing it that way. But I can hang out a shingle as a computer repairman, business consultant, farrier, auto detailer, Internet provider, or a hundred other choices, and slave away without any state permission whatsoever.

henrybowman | July 17, 2023 at 3:08 pm

“The gay wedding web site would not have an expression of her own beliefs and she was not asked, nor would she have been paid, for her approval of the content of the site nor the ceremony it announces.”

So then, absolutely no problem compelling the architects at Bernstein, Blum, and Levi to design the new American Nazi Party HQ.

    BierceAmbrose in reply to henrybowman. | July 17, 2023 at 9:12 pm

    That’ll bother none of the screechy people.

    Compel the new American Nazi Party to build a synagogue and the barking seals will go crazy.

not_a_lawyer | July 18, 2023 at 6:58 am

What I don’t get is that these rulings always refer to ‘sincerely held religious beliefs’.

I’m an atheist. I do not hold any ‘sincere religious beliefs’. I have beliefs, to be sure, but they are not based on religion. Can I not deny my services based on simply not wishing to provide them, or do I have to be a practicing Christian, Jew, Muslim, or whatever in order to enjoy protection?

If we have ‘separation of church and state’, then these rulings cannot be based on ‘sincerely held religious beliefs’. I have rights as an atheist too.


    DSHornet in reply to not_a_lawyer. | July 18, 2023 at 10:04 am

    Do you have a sincerely held belief system to which you adhere in daily life?

    Please don’t misunderstand. I’m not trying to pick a fight. I’m genuinely curious because I simply don’t know. How does this work?