303 Creative v. Elenis is a very simple case that should have yielded a unanimous ruling. As Justice Gorsuch explains in his excellent majority opinion for six justices, the legal question in the case is whether the First Amendment permits a state to use a public-accommodations law to compel an individual to create speech that she does not believe.
The individual in the case is Lorie Smith, who wanted to offer customized wedding websites that would include her own original text and artwork. Smith serves customers “regardless of their race, creed, sex, or sexual orientation” but will not create “expressions that contradict her own views for anyone—whether that means generating works that encourage violence, demean another person, or defy her religious beliefs by, say, promoting atheism.” She worried that if she entered the wedding website business, Colorado would apply its public-accommodations law to punish her for not providing customized websites for same-sex ceremonies.
1. A brief summary of Gorsuch’s opinion:
Various precedents going back to West Virginia Board of Education v. Barnette (1943) (holding that schoolchildren can’t be forced to salute the American flag and recite the Pledge of Allegiance) make clear that the First Amendment protects someone from being compelled by the government to express speech that she objects to. (Slip op. at 6-9.)
The wedding websites that Smith seeks to create qualify as pure speech protected by the First Amendment. As a condition of offering wedding websites celebrating marriages she endorses, Colorado seeks to compel Smith to celebrate other marriages she does not. That’s a flat violation of First Amendment speech guarantees.
Colorado’s position, taken seriously, would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty:
The government could require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would make films or murals for other members of the public with different messages. Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage. [Slip op. at 12.]
2. Justice Sotomayor, joined by Justices Kagan and Jackson, argues in dissent that the Colorado public-accommodations law “targets conduct, not speech, for regulation.”
Gorsuch demolishes Sotomayor’s dissent (see slip op. at 19-25):
Doubtless, determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions. But this case presents no complication of that kind. The parties have stipulated that Ms. Smith seeks to engage in expressive activity. And the Tenth Circuit [which somehow ruled against Smith] has recognized her services involve “pure speech.” Nothing the dissent says can alter this—nor can it displace the First Amendment protections that follow.
Gorsuch also observes that Sotomayor’s dissent “[i]n some places … gets so turned around about the facts that it opens fire on its own position.”
I have sufficient respect for Justice Kagan’s intellect and for her commitment to the First Amendment that I’m surprised to see that she signed on to Sotomayor’s dissent. Tribal loyalty is strong, it would seem.