Monday 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.
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