303 Creative: The Promise, and the Doubts

The Supreme Court came to a resounding finish in an exhausting year, and people on my side were pleased to see the Court come to the aid of the religious in two cases at the end. In Goff v DeJoy the Court came down in support of a postal worker who did not wish to be forced to put in hours on Sunday, the Sabbath—even for the exalted cause of doing deliveries for Amazon. In the more celebrated case of 303 Creative v. Elenis, the Court sustained Lorie Smith, a designer of websites, who did not wish to engage her arts—or put her imprimatur—on a same-sex wedding. Ms. Smith’s convictions about marriage were fortified by her sense that this kind of arrangement, claiming the name of “marriage,” “contradicts biblical truth.”

Still, Lorie Smith’s case did not rest at all on her “religious faith.” Her lawyers and the Court identified the wrong as follows: “Colorado seeks to compel speech that Ms. Smith does not wish to provide.” In reaching that judgment Justice Gorsuch and his colleagues steered delicately around some of the most notable cases in which the government compelled speech, on matters of public importance, that the speakers had not wished to utter.

And yet, this decision, even with the most tenuous ground to support it, may do a vast public good. What may be said of this decision is what Thomas Babington Macaulay once said of Britain’s highly celebrated 1689 Toleration act, which proclaimed a new tolerance while lifting, as he said, “not a single one of the cruel laws enacted against non-conformists by the Tudors or the Stuarts… All that can be said [of it] is this: [it] removed a vast amount of evil, without shocking a vast amount of prejudice.”

Moral Grounds

The obvious, animating concern of the case was Lorie Smith’s deep moral objection to same-sex marriage. But as her lawyers recognized, the laws had foreclosed that path of argument to her. In 2015, the Court in Obergefell v. Hodges had done nothing less than declare the moral rightness of same-sex marriage and, as Justice Alito observed, “vilify Americans” who opposed same-sex marriage as wrongdoers and “bigots.” But even before Obergefell, Colorado accomplished the same result through its Anti-discrimination Act. That Act barred discriminations on the basis of “sexual orientation” for virtually every private business open to transactions with the public.

It was a regime-changing event when the Civil Rights Act of 1964 barred racial discrimination in “public accommodations”—mostly private inns and restaurants. The States did not have to work with implausible fictions based on the power of Congress to regulate commerce. They could act more directly under the local police powers, and with those powers Colorado went after Jack Phillips, the Masterpiece Cakeshop baker, who refused to make a cake for a same-sex wedding. Even after the Supreme Court sent that case back, the State was still harassing Phillips as he refused to make cakes to celebrate transgenderism. Lorie Smith was eminently sound, then, in her judgment that the State was likely to come after her with a case suitably contrived. And indeed the State stipulated that that she would be subject to punishment if she persisted in the course she was taking. She sought a “pre-enforcement” injunction to fend off a prosecution, and the Supreme Court sustained her standing to bring the suit.

Justice Gorsuch waved the banner of the First Amendment in affirming “the freedom to think as you will and to speak as you think.” He rolled out the familiar cases in which the Court had protected truly offensive speech, including the case of self-styled Nazis seeking to parade through a Jewish community in Skokie, Illinois. But he curiously side-stepped cases in which the Court has indeed sustained laws that coerced speech. In one of his earliest cases on the Court, in 1991 when he was willing to get things right, David Souter provided the fifth vote for a conservative majority to uphold restrictions on the encouragement or counseling of abortions (Rust v. Sullivan). The first Bush Administration had barred employees of pregnancy centers supported under Title IX with federal funds from counseling clients in favor of abortion. This rule was imposed on many doctors and medical workers who bore the firmest convictions on the rightness and desirability of abortion. And so of course they raised a claim under the First Amendment that they were being muffled from speaking their true convictions and offering their authentic “medical” advice.

But then of course there were the obligations placed on pharmaceutical companies to speak—to warn of the hazards of their products. Justice Thomas is usually averse to restrictions based on the “content” of speech, but in NIFLA v Becarra (2018) he thought that companies could be compelled to speak “where information can save lives.’” But as Justice Breyer observed in dissent in the same case, “Virtually every disclosure law could be considered ‘content-based,’ for virtually every disclosure law requires individuals to ‘speak a particular message.’”

The most striking example on the other side, of the law barring speech in a sweeping way, came with the Fair Housing Act of 1968. The law sought to ban racial discrimination even in the selling of privately owned dwellings, and it did not hold back from barring also the speech that was the annex to those acts of discrimination. And so it became unlawful to print or put up any notice “with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin.”

The animating logic behind this law was a moral logic: Racial discrimination in all of its instances was to be branded as deeply, irredeemably wrong, and if that were the case then all published notices promoting this deep wrong could rightly forbidden and silenced. “If slavery is right,” said Lincoln in his famous Cooper Union speech, “all words, acts, laws, and constitutions against it, are themselves wrong, and should be silenced, and swept away…. The defenders of slavery thinking it right, and our thinking it wrong, is the precise fact upon which depends the whole controversy.”

But that is exactly what is engaged in 303 Creative. To deny the rightness of same-sex marriage was regarded in Colorado as deeply, morally wrong, and as the Tenth Circuit Court of Appeals noted, the coercive “[e]liminati[on]” of dissenting “ideas” about marriage constitutes Colorado’s “very purpose” in seeking to apply its law to people like Lorie Smith. Smith’s lawyers could not challenge that driving purpose without challenging the holding in Obergefell. Hence the need to argue over compelled speech.

The Right to Remain Silent

The most notable example that offered itself was the famous “flag-salute” case (West Virginia School Board v. Barnette, 1943). Parents who were Jehovah’s Witnesses were threatened with prison if their children wouldn’t salute the flag and recite the pledge of allegiance. When Justice Jackson struck down that law, he didn’t invoke religious freedom. He famously declared that “no official, high or petty can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion”—without apparently noticing that as an “official,” in high authority, he was indeed proclaiming a new orthodoxy. But in contrast with the students in Barnette, Colorado pointed out that Smith was not compelled to speak any words. She refused to lend the imprint of her name to a website whose meaning she could not accept—any more, she said, that she would offer works that encourage violence, demean persons, mock religious belief, and affirm atheism. The State read her act of refusal as an “expressive act,” as loud as a public denunciation of same sex marriage. By a similar token, one witness years ago before the Senate Committee on the Judiciary insisted that he had no moral judgment on abortion, for or against. But it was pointed out in the hearing that he performed the surgery, and Professor Daniel Robinson observed that this was a “non-verbal statement,” a performative act whose meaning could be easily read.

But then, as Justice Breyer pointed out  in the oral argument in the Masterpiece Cakeshop case, the businessman who refuses to deal with black customers could be seen as engaged in a performative act as well. So to punish him for his refusal to serve would be to “compel” his speech. To go down this path, as Breyer earnestly warned, was to lay the ground of a challenge to the civil rights laws—if one wished to look closely at this reasoning and take the Court at its word. But the judges are armed with stylish lines to distract those critics who might otherwise be inclined to read these opinions in an overly demanding way: “Sufficient uno the day is the evil thereof”—Why anticipate the judgment on a case not before us?

Diverting our eyes from that problem, is it possible that Lorie Smith has brought forth a judgment that will protect Jack Phillips, along with florists and other people in business who have risked ruinous fines in refusing to approve same-sex marriage? That would indeed be a windfall, a vast public good. But we know that people who see themselves as supremely clever will flex their wit to find a way around the decision in 303 Creative. Still it must be said that the lawyers from the Alliance Defending Freedom managed to do, for Lorie Smith, as much as practicably could be done. But a conservative, wary of a beamish optimism, may naturally wonder whether a decision propped on such infirm legs will travel very far.

Even as a Mustard Seed

And yet…during the oral argument, the justices had glimpsed another path. Justice Kavanaugh raised the question of a group of writers who have written speeches in the White House and now make their services available to the public. As people “in business,” could they refuse “to write speeches that violate their most deeply held convictions”? Justice Gorsuch, in his opinion, cited Judge Tim Tymkovich in the Tenth Circuit, wondering whether the government could compel “an atheist muralist to accept a commission celebrating Evangelical zeal.” There are publishing houses, we know, that will not publish anything critical of transgenderism or of gays and lesbians. Might the law challenge the freedom of a publisher to hold steady in rejecting manuscripts on the other side?

The justices found themselves backing here into a deep principle that did not depend either on “speech” or the defense of “religious freedom.” They were touching a principle at the heart of the First Amendment. In our case law, the point was brought out clearly, in the days of the New Deal, in Associated Press v. National Labor Relations Board (1937): a publisher that was deeply opposed to compulsory unionism was forced to accept a labor union. The Court held that no speech had been restricted. But as Justice George Sutherland pointed out in his dissent, there was an even deeper principle of the First Amendment: The “right of the people peaceably to assemble” marked the freedom of people to associate with others in seeking ends they all shared. And if there is such a right to associate, it must surely entail, as Sutherland held, a right to preserve the integrity of that association.

Imagine the case now of a pro-choice journal, with an editor who suddenly experiences a conversion to become pro-life and anti-abortion. If the management seeks to remove her, could she claim she is being fired because of her moral and political views? But of course she would still be free to publish her views and find employment with pro-life organizations. That is something notably different from the law actually forbidding her to publish her views. The decisive point is that, if people are free to associate with others for a legitimate end, they must have the right to preserve the integrity of their association, if only by ensuring that their members are still committed to the same ends that brought them together.

Even when Roe v. Wade defined the law on abortion in this country, it was still legitimate for people to become active in many pro-life organizations. Justice Kennedy had little regard for the acuity of people who opposed same-sex marriage, but he never doubted that people would remain free to join with others in opposing that decision and holding that the only rightful understanding of marriage is the union of one man and one woman committed to one another in law. There could be no doubt then, in turn, of the right to preserve organizations dedicated to the defense of that understanding of marriage. Nor could one doubt the right to hold those convictions even when they run publishing houses. Lorie Smith cannot obstruct the freedom of any same-sex couple to marry. Nor has she sought the overturning of Obergefell. Beyond that, she does not turn away from gays and lesbians who want a website to celebrate their friendship. She simply holds to her view about the wrongness of same-sex marriage.

The wide freedom claimed by publishing houses to support or oppose same-sex marriage should attach then with no strain to professionals who design websites—or cakes. To plant in the law that one simple but telling point may offer a win that runs well beyond the freedom of speech. For it may point to the right of people, employed in organizations private or public, not be shamed and intimidated, branded as bigots, and threatened with the loss of their jobs, if they hold to the understanding of marriage honored for hundreds of years, in this country and abroad, until the laws and the culture were turned upside down by five justices in 2015.