In a case argued today, the Supreme Court will have to answer fundamental questions about the liberty to create and to dissent.
In a case argued today, the Supreme Court will have to answer fundamental questions about the liberty to create and to dissent.
M onday morning, the Supreme Court will hear arguments in 303 Creative v. Elenis. This case squarely presents a question of crucial importance to the survival of pluralism and liberal democracy: Can the government compel artists, writers, and other creators to endorse government orthodoxy on fundamental issues in their creations? Can it make adherence to that orthodoxy the price of being able to create things for a living?
The orthodoxy in question, of course, is same-sex marriage. It was enacted nationwide, not by popular elections, but by a vote of five lawyers who couldn’t wait for democracy. In so doing, they overturned an ancient and universal understanding of marriage that is embedded in the social and religious traditions of nearly every society on earth and that was the law of every state from colonial times until very recently. Having deemed themselves a majority, the supporters of Obergefell v. Hodges now seek to compel unanimity.
Even as voters have come to broadly endorse the only choice the courts would allow them, many Americans continue to reject as a matter of conscience the ontological belief that same-sex marriage is morally acceptable, or that it is identical for all meaningful purposes to traditional opposite-sex marriage. Much of that dissent is rooted in the religious identity of the dissenters, who are being asked to publicly renounce what their faith demands. Should the government tolerate dissent, or should it seek to punish the religious identity of those who adhere to beliefs that differ from those of the government?
Last week, I caught up with Web designer Lorie Smith, the plaintiff in 303 Creative, and her attorney, Kristen Waggoner, who is the CEO, president, and general counsel of Alliance Defending Freedom (ADF).
The 303 Creative Case
303 Creative is, by design, a sequel to the Masterpiece Cakeshop case in 2018, also argued in the Supreme Court by Waggoner. Jack Phillips, a Colorado baker, was hauled up on charges of sexual-orientation discrimination by the Colorado Civil Rights Commission for declining to bake a wedding cake for a same-sex wedding in 2012. Same-sex marriages were not recognized under Colorado law at the time, and Phillips was willing to sell baked goods to gay customers, but he would not bake them a custom cake for a same-sex wedding. The Supreme Court was asked to decide whether Colorado’s laws banning discrimination in public accommodations overrode Phillips’s First Amendment rights to free speech and free exercise of religion.
The Court ducked the question, ruling in a characteristically gaseous 7–2 opinion by Justice Anthony Kennedy that the commission’s overt anti-religious animus violated Phillips’s own rights to fair and equal treatment in the free exercise of his faith. Two of the liberal justices who concurred in the result (Breyer and Kagan) emphasized that, on the underlying question, they would rule that state anti-discrimination law preempts the First Amendment. Since then, Kennedy, Breyer, and one of the dissenters (Justice Ruth Bader Ginsburg) have left the Court, replaced by Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson. Kavanaugh and Barrett, replacing Kennedy and Ginsburg, should be a more favorable lineup for religious and speech rights.
Colorado has not let up. It went immediately after Phillips again and is still after him. And some states have escalated the penalties for dissent. The ADF brought a different lawsuit on behalf of Smith, who wishes to get into the wedding-Website business but fears that Colorado will pursue her as well if she stands on her religious beliefs and declines to create websites for same-sex weddings. Colorado has made clear that it will, and it’s defending its power to do so. I asked Waggoner whether a victory in 303 Creative would get the state to finally leave Phillips alone. Her response: “Our hope is that the United States Supreme Court will put an end to this and stop the state from harassing people that it doesn’t agree with.”
This time, there is little question that the Court has to answer the question it avoided in Masterpiece Cakeshop. There has been no administrative proceeding, so there is no issue of the subjective views of the Colorado commissioners (who have remained unrepentant). The case comes to the Court on an evidentiary record of stipulated facts — in other words, the two sides sat down and produced a list of facts both agreed to. Unlike the Masterpiece Cakeshop case, in which there was much debate about whether cake-baking is really “speech,” there is no serious question that custom website design is an expressive activity that would qualify as speech under the Supreme Court’s precedents. Moreover, while Smith challenged the application of the Colorado Anti-Discrimination Act on both free-speech and religious-liberty grounds in the lower courts, her petition to the Supreme Court was limited to the free-speech question: “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”
As usual, the ADF is working with a sympathetic client, a woman running a small business who has braved death threats and the doxxing of her home address to take on the remorseless apparatus of the state because her faith identity leaves her no other choice. This is not just what she does, it is who she is. Like Joe Kennedy, the coach who took his right to pray on the job to the Supreme Court last term, Lorie Smith fully embraced her Christian faith only in adulthood after a difficult journey, and, as a result, she’s all the more stubborn in adhering to its tenets. As she told me: “When I became a believer of Jesus Christ, I committed to living life in a new way. And my faith, faith is at the core of who I am and inspires my work.”
Arrayed against her is the remorseless Colorado civil-rights bureaucracy, stacked with monomaniacal career civil servants. But also, let’s be honest, against her is the elected government of Colorado. The commission is run by appointees of the past two governors, John Hickenlooper (now a senator) and Jared Polis. Hickenlooper and Polis have gotten occasional good press from the center-Right for being moderate and reasonable on some issues — Hickenlooper on fracking, Polis on Covid policy and taxes — but both men have been foursquare behind crushing the dissent of Phillips and Smith. Polis, for example, signed an amicus brief against Phillips in Masterpiece Cakeshop, and Hickenlooper pronounced himself “disappointed” in the decision.
The Stakes
303 Creative involves three general questions, all of which the Court will have to address at least obliquely. The first two are big-picture disputes.
Question one: Does our Constitution make the Bill of Rights subordinate to the principle of social equality?
The Constitution, as originally written and amended by the Bill of Rights, says nothing about equality. But in order to secure fundamental individual rights against the government, it provides a list of rights that are inalienable whether or not they are violated evenhandedly. In order to prove a Third Amendment violation, for instance, a citizen must show that troops were quartered in his or her house. It doesn’t matter whether or not it happened to anybody else.
The equality principle was introduced into the Constitution after the Civil War for the same basic reason that the Bill of Rights itself was written: because the existing Constitution appeared inadequate to secure individual rights against deprivations by the government, in this case the state governments. The 14th Amendment pursues equality by limiting the power of government to engage in invidious forms of discrimination among citizens — most obviously, race discrimination — and by requiring that the basic laws of the nation protect all within its borders.
Adding those protections did no violence to anyone else’s preexisting rights. Indeed, the Constitution only once — in banning slavery — places any restriction on the conduct of private citizens.
Laws passed by Congress in order to root out private discrimination, some of them invoking the remedial authority of the 14th Amendment, have changed that. This is ironic, because bans on private race discrimination might never have been seen as needed in the absence of long-standing tanding state-sponsored slavery and segregation. The deep roots put down in society by those state actions, however, made it necessary by the 1960s to combat private race bigotry with the strong arm of the law. States and cities have passed their own anti-discrimination laws under similar principles, some of them much broader than federal law and enforced by progressive zealots such as those on the Colorado Civil Rights Commission.
Some conservatives in the 1960s, even those who saw the necessity and the constitutionality of extending anti-discrimination law to limit the decision-making of private individuals and businesses, warned that a Pandora’s box was being opened that would have many unintended consequences. Since then, the equality principle has nearly swallowed the entire rest of the Constitution. The government, in the name of anti-discrimination, claims the right to restrict or compel speech, limit religious liberty, invade privacy, confiscate property, deprive liberty, empower Congress to exceed its enumerated powers, and empower the president to usurp the powers of Congress.
The problem is how to shut the box without hobbling legitimate federal and state power to protect the equal rights of all to enjoy the fruits of civil society. As a practical matter, a ruling in favor of Smith and 303 Creative is not likely to set off the parade of horribles suggested by Colorado and its allies, such as people claiming a religious right to deny a service to black Americans. There simply isn’t any major religious tradition left in this country that would justify that. But, of course, the Supreme Court has to deal in neutral rules, not practical likelihoods.
Question two: Which is more like race, religious faith or sexual orientation?
Race discrimination provided the original framework for how the equality principle operates in American constitutional law. The essential nature of race is that it is an identity that is not freely chosen. It is an immutable characteristic. Even if you reject the entire silly framework of racial thinking, it is still who you are, as perceived by the wider world. The ethos of anti-discrimination law is to prevent people from facing discrimination for an identity they cannot change.
Colorado’s specific legal argument is that anti-discrimination law presents a compelling state interest. Under the framework used in the Court’s precedents, even fundamental rights can be overcome by a compelling state interest, so long as the state’s means to accomplish it is narrowly tailored. The larger implication is that anti-discrimination law always trumps fundamental rights — even if that means depriving one individual of rights that are supposed to be fundamental in order to prevent others from facing the moderate inconvenience of having to consult a second wedding vendor.
Here’s the rub: The underlying assumption of Colorado’s position is that same-sex marriage is an identity and that it harms the “dignity” of anyone with that identity to encounter businesses and individuals who will not endorse it through expressive commerce. As the state’s brief argues:
The common law long recognized that the injuries caused by denial of access include the dignitary harms that stem from such denial. . . . The state has an equally compelling interest in protecting the dignity of its citizens. Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when denied service. . . . The government has an interest in protecting its citizens from the political, social, and moral damage of discrimination. . . . The fundamental object of public accommodations laws is to vindicate the deprivation of personal dignity that surely accompanies denials of equal access to public establishments. [Quotations and citations omitted.]
By contrast, the state frames Smith as having a choice: She can always just decline to sell wedding websites. But why is same-sex marriage an identity whose dignity must be protected, while religious faith is simply a choice? Why does the law place no value on the harm to the dignity of a Christian in being told that she may not ply her trade unless she is willing to violate the tenets of her religious identity? There is no way around the conclusion that the state’s entire argument about dignity and access to the public square rests on the assumption that same-sex couples are exercising an identity similar to race, while religious believers are not.
Question three: Are custom products different?
A major focus of the 303 Creative litigation, which allows the Court to limit a ruling in favor of the plaintiffs without addressing all the big-picture questions, is whether it matters that Smith’s business performs custom services in Web design rather than just selling off-the-shelf prefabricated products. As much as Colorado has labored to frame this as a case about sales, it is fundamentally about the fact that a Web designer — like a wedding photographer — is engaged for a service and then performs it in expressive ways, rather than just selling the same product to everyone without personalizing it. The personal-services aspect of creative work is what makes it so obviously speech in First Amendment terms. Waggoner hangs Smith’s compelled-speech argument on this distinction, noting that sales of fungible products would be “a completely different case, and one we would not bring.”
The Tenth Circuit, however, reached the precise opposite conclusion in ruling in Colorado’s favor. 303 Creative and Smith argued that the case of a few dissenting Coloradans would not create the sort of wholesale exclusion — in this instance of same-sex couples from the wedding-services market — that black Americans faced in the Jim Crow South. In a chilling passage, the appeals court not only rejected that argument, but stood it on its head:
Due to the unique nature of Appellants’ services, this case is more similar to a monopoly. The product at issue is not merely “custom-made wedding websites,” . . . but rather “custom-made wedding websites of the same quality and nature as those made by Appellants.” In that market, only Appellants exist. [Emphasis added, citation omitted.]
Under this theory, customers do not simply have a right to buy your product: They have a right to you. Applied to the market for personal services, this theory is not just an existential threat to the freedom of the creator; it skates perilously close to violating the 13th Amendment’s prohibition on involuntary servitude. In the field of contract law, for example, common-law courts could traditionally order either damages for a breach or “specific performance.” Specific performance entails a court order to perform the contract. Specific performance is most commonly ordered when the contract calls for selling a unique item such as a house, and it is sometimes ordered in business cases. For example, when Twitter sued Elon Musk, it asked a court to order him to go through with buying the company (he ended up negotiating a purchase).
But specific performance of a contract for personal services has long been disfavored at common law. A famous English case from 1852, Lumley v. Wagner, refused to order an opera singer (the niece of the composer Richard Wagner) to sing against her will. Ever since the passage of the 13th Amendment, American courts have been especially hesitant to order someone to perform labor against his will, even when he contracted freely to do it. That rule is sometimes even extended to limits on the scope of non-compete clauses in employment agreements.
In Pollock v. Williams (1944), the Supreme Court struck down peonage laws — which allowed forced labor to pay off freely contracted debts — as a violation of the 13th Amendment and of a federal enabling statute. As Justice Robert Jackson wrote for the majority:
The undoubted aim of the Thirteenth Amendment . . . was not merely to end slavery but to maintain a system of completely free and voluntary labor throughout the United States. . . . When the master can compel and the laborer cannot escape the obligation to go on, there is no power below to redress and no incentive above to relieve a harsh overlordship or unwholesome conditions of work. . . .
Whatever of social value there may be, and of course it is great, in enforcing contracts and collection of debts, . . . no indebtedness warrants a suspension of the right to be free from compulsory service. . . . No state can make the quitting of work any component of a crime, or make criminal sanctions available for holding unwilling persons to labor.
This is still a free country, in which the freedom to create includes both the freedom to dissent and the freedom of conscience to control one’s creations. Private businesses and individuals large and small rely on those freedoms — including the freedom to boycott. The Court should reaffirm those fundamental liberties.