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303 Creative Is a Big Win for Religious Liberty at the Supreme Court

June 30, 2023

Earlier today, the U.S. Supreme Court handed down its much-anticipated decision in 303 Creative v. Elenis, a free speech case with implications for religious liberty. In a 6-3 landmark decision, the Court held that the government may not compel Americans to express messages they do not believe.

The question before the Court was whether a Colorado public accommodation law could be used to compel artists to create messages inconsistent with their beliefs—particularly religiously informed beliefs. Web designer Lorie Smith, a devout Christian, was the plaintiff in the case. Her business serves everyone, including those who identify as LGBT. But Smith, who decides which projects and websites to design based on the message she is asked to express, argued that Colorado’s public accommodation law was forcing her to choose between her business and her religious convictions.

Writing for the majority, Justice Neil Gorsuch explained that the First Amendment prohibits compelled speech:

In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. … But, as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong … tolerance, not coercion, is our Nation’s answer.

Smith, who was represented by Alliance Defending Freedom, was motivated to file a pre-enforcement lawsuit against Colorado when she saw how the state had used the same law to punish Masterpiece Cakeshop owner Jack Phillips. Phillips won a 7-2 decision at the U.S. Supreme Court in 2018 when the Court found that the Colorado Civil Rights Commission had acted with “clear and impermissible hostility” toward Phillips’ “sincere religious beliefs,” a violation of the First Amendment’s Free Exercise Clause.

Although the Court did not address the free speech claim in Masterpiece, in 303 Creative, the Court ruled that using a public accommodation law to compel an artist to speak or stay silent violates the First Amendment’s Free Speech Clause. As Gorsuch explained:

This Court has also long recognized that no public accommodations law is immune from the demands of the Constitution. In particular, this Court has held, public accommodations statutes can sweep too broadly when deployed to compel speech.

Elsewhere, Gorsuch took Colorado to task, noting:

Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the message—if the topic somehow implicates a customer’s statutorily protected trait. Taken seriously, that principle 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 Court’s precedents recognize the First Amendment tolerates none of that.

The 303 Creative decision is the latest in a trend of victories for free speech and religious liberty. Yesterday, the Court ruled unanimously in favor of a Pennsylvania postal worker who had requested a religious accommodation to avoid working on the Sabbath. The Court found that the U.S. Postal Service had failed to reasonably accommodate Gerald Groff’s religious beliefs. Last year, in another free speech case, the Court unanimously ruled that the city of Boston had violated the Free Speech Clause by discriminating against a Christian who had asked to fly a Christian flag outside City Hall. (Boston had routinely approved requests from other groups.)

Other important victories include the 2019 decision in American Legion v. American Humanist Association that a 40-foot cross on public land did not violate the Establishment Clause. In 2017, the Court ruled in Trinity Lutheran Church of Columbia v. Comer that a state agency could not deny a church an otherwise available public benefit on account of the church’s religious status. And in 2014, the Court decided in Burwell v. Hobby Lobby Stores that Obamacare’s contraceptive mandate violated privately held for-profit corporations’ right to religious freedom.

Christians and other people of faith ought to celebrate the 303 Creative decision. No one should be compelled to create messages that violate their deeply held, religiously informed beliefs. As Gorsuch explained in the majority decision:

The First Amendment’s protections belong to all, not just to speakers whose motives the government finds worthy. In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.

Today’s decision is significant because the Court acknowledged that the belief that “marriage is a union between one man and one woman is a sincerely held conviction.” Moreover, it explained in unmistakable terms that the First Amendment protects the rights of all Americans to order their lives around these deeply held beliefs, even if they are unpopular.

Although Christian sexual ethics have fallen out of favor with the broader culture, these doctrines are crucial to how Bible-believing Christians understand God’s design and purpose for marriage and our embodiment as male and female. Holding these truths and ordering our lives around them is a matter of Christian faithfulness.

No American should be coerced to express beliefs they do not hold. Because of today’s ruling, these freedoms are even more secure. This is good news for Christians whose theologically informed convictions on marriage shape their lives in countless ways. But this is also good news for those who do not hold biblical views on marriage precisely because it ensures that all convictions—Christian and non-Christian—are protected, as the Constitution intends.

Everyone should be free to believe what they want in terms of theology and doctrine and have the freedom to order their lives according to these convictions. The Court’s decision makes it clear that a majority of the justices on the U.S. Supreme Court believe in this expansive view of religious freedom. This is good news for all of us.

David Closson (M.Div., Th.M. Southern Seminary) serves as the Director of the Center for Biblical Worldview at Family Research Council. He is a Ph.D. candidate in Christian Ethics at Southwestern Baptist Theological Seminary.

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