Freedom of expression and civil rights

A simmering, difficult, and timely question returns to the Supreme Court this fall: What happens when free speech and civil rights collide?

The court addressed similar questions four years ago in the famous “gay wedding cake” case, Masterpiece Cakeshop, Ltd. v. the Colorado Civil Rights Commission, about a baker who refused to serve a same-sex couple because of to their religious beliefs. . The judges ruled in his favor, but they did so on limited grounds, skirting the direct constitutional issues of freedom of religion and freedom of expression.

US Supreme Court LGBTQ Rights

Now, another Colorado case about free speech and same-sex marriage has made its way to court: 303 Creative v. Elenis. As a law and education professor who pays special attention to First Amendment issues, I see that the case highlights the tension between two fundamental competing interests, interests that seem to routinely clash in 21st-century America.

On August 30, 2022, for example, another similar case was decided, this time in Kentucky. A federal trial court ruled in favor of a Louisville wedding photographer who sued over the city’s “Equality Ordinance,” which prohibits discrimination based on sexual orientation or gender identity. He argued that the law violated his religious beliefs and his right to free speech, and the court agreed, explaining that “the government cannot force singers, writers or photographers to articulate messages they do not support.”

Freedom to speak or remain silent

Graphic artist Lorie Smith is the founder and owner of a studio called 303 Creative. According to court documents, Smith is generally willing to serve LGBTQ customers. However, she intends to start designing wedding websites and she is unwilling to create them for same-sex couples, saying that it would go against her Christian beliefs.

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However, under Colorado’s Anti-Discrimination Law, it is discriminatory and illegal to deny services to someone based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”

In 2016, Smith sued members of the state Civil Rights Commission and the Colorado attorney general. Smith argued that having to set up a same-sex wedding website would violate her First Amendment rights by forcing her to speak, what lawyers call “forced speech.”

Historically, the constitutional right to freedom of “speech” has been understood to cover a variety of ways that people express themselves, including writing, art, and protest. But not only does it protect the right to protect one’s speech, it also safeguards the right not to speak in the first place.

Through his lawyers, Smith also maintained that requiring him to create a website would violate his First Amendment right to the free exercise of religion.


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Road to Scotus

The federal trial court in Colorado denied Smith’s request to block the anti-discrimination law in 2019. When he appealed, the circuit court agreed with the earlier ruling: he could not refuse to create websites for weddings between persons of the same same sex, even if it had gone against their beliefs.

Protecting diverse viewpoints is “a good in itself,” the court wrote, but combating discrimination “is, like individual autonomy, ‘essential’ to our democratic ideals.”

In a lengthy dissent, the chief judge highlighted Smith’s claim of forced speech, criticizing the court for taking “the remarkable and novel position that the government can compel Ms. Smith to produce messages that violate her conscience.”

Smith appealed to the Supreme Court, which, in February 2022, agreed to hear his claim, limited to the issue of free speech, not freedom of religion. The question before the nine judges will be “whether the application of a public accommodation law to compel an artist to speak or remain silent violates the Free Speech Clause of the First Amendment.”

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Case key?

So how will the judges rule? The Supreme Court may have given a clue to his initial attitude when it announced that it would hear the case. The judges focused on a legal standard called “strict scrutiny,” as they did in their previous case on this issue, Masterpiece Cakeshop.

Under strict scrutiny analysis, the strictest form of judicial review, government restrictions on fundamental rights must be justified by a compelling state interest in order to be respected. In other words, the restrictions must promote the interests of the government at the highest level and be strictly tailored to those objectives, in this case, to prevent discrimination based on sexual orientation.

But the Supreme Court was skeptical that Colorado’s anti-discrimination law could survive this test, writing: “The Tenth Circuit applied strict scrutiny and surprisingly concluded that the government can, depending on content and point of view, compel Lorie to transmit messages that violate their religious beliefs. and prevent her from explaining her faith.”

When the Supreme Court applies strict scrutiny, it rarely upholds government restrictions on constitutional rights, which could suggest a victory for Smith.

Another possible indication, again in favor of Smith, is Janus v. American Federation of State, County, and Municipal Employees, Council 31, a 2018 case from Illinois involving forced speech. In this case, the Supreme Court ruled in favor of a non-union public employee who challenged an Illinois law that required him to pay equitable dues to the union representing his colleagues for costs associated with the bargaining process. The court agreed with the employee’s contention that because the union supported positions he disagreed with, his having to pay the fees violated his First Amendment right as a form of expression. forced.

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a second chance

On the other side of the controversy is the vital interest of same-sex couples and other people in the LGBTQ community to live free from discrimination based on their sexual orientation.

In a 2019 case, Bostock v. Clayton County, the Supreme Court interpreted Title VII of the Civil Rights Act of 1964, a far-reaching employment statute, as extending protections against workplace discrimination to gay and transgender people. However, the Court has yet to address the conflict of rights at issue in 303 Creative.

The key question, then, seems to be whether people can require artists or those engaged in expressive activities to provide their services if doing so could be seen as a form of forced expression, violating their right to remain silent on issues with which they do not they agree. .

So it remains to be seen if 303 Creative will set a new precedent in balancing First Amendment liberties and protecting others from discrimination. After all, he dodged constitutional issues at Masterpiece Cakeshop. The court based its decision in favor of the baker on comments from some of the Colorado commission members about his beliefs. Most found those comments violated the state’s First Amendment duty to maintain religious neutrality and avoid hostility toward faith-based beliefs or views.

While the court hasn’t set a date for oral arguments, and likely won’t deliver judgment until near the end of its term in June 2023, it promises to be one of the highest-profile trials of the coming year. And regardless of the outcome, 303 Creative is likely to generate even more controversy.

Charles J. Russo, Joseph Panzer Chair in Education in the College of Education and Health Sciences and Research Professor of Law at the University of Dayton, first published this article on The conversation.