The Supreme Court announced on Tuesday morning that it will hear the case of a Colorado web designer who declines, on First Amendment grounds, to serve same-sex marriages. The question the justices agreed to decide in the case, Creative LLC v. Elenis, is “whether applying public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.” (See Order List, p. 4.)
Obviously, the case is reminiscent of Masterpiece Cakeshop v. Colorado Civil Rights Commission, which the Court decided — or, in essence, failed to decide — four years ago.
I have been a dissenter from misplaced conservative exuberance over the Masterpiece Cakeshop ruling. To my mind, the justices dodged the main free-speech and religious-liberty question, namely, whether Jack Phillips had a First Amendment right to decline to engage in expression — the creation of a cake celebrating gay marriage — that offended his beliefs. In Roberts-Court style, instead of deciding that issue, which would have resulted in a sharply divided ruling, the Court opted for a more ostensibly collegial 7–2 ruling that the Colorado Civil Rights Commission had exhibited intolerably overt hostility. This was a hollow victory for Phillips since it assured that he’d continued to be harassed by the woke Left and its loyal bureaucrats. As he has been.
The new case will be considered by a different Court. Justice Anthony Kennedy, the Masterpiece Cake author, has been replaced by his former clerk, Justice Brett Kavanaugh. By the time the Court hears arguments next term, Justice Stephen Breyer, who joined the majority (in addition to joining a concurrence by Justice Elena Kagan that adumbrated Phillips’s continuing grief), will have been replaced by a Biden appointee. And most consequentially, the late Justice Ruth Bader Ginsburg, who dissented because she believed Phillips should lose outright, has been replaced by Justice Amy Coney Barrett, who may be more sympathetic to the First Amendment rights at issue.
We shall see. I hope the Court grapples with the main question this time so that yet another claimant is not subjected to the punishment of additional years of litigation process.