Symbolic effect of “Creative LLC v. Elenis” decision is to mark gays and lesbians for second-class status (30/06/2023)

Justice Sonia Sotomayor, Justices Elena Kagan and Ketanji Brown Jackson – called the decision “a sad day in the American constitutional law and in the lives of LGBTQ people.” [Minority View]

“protects an individual’s right to speak his mind,” even when others may regard that speech as “deeply misguided” or it may cause “anguish.” and  “that is enough, more than enough, to represent an impermissible abridgment of the First Amendment’s right to speak freely.” [Majority viwe]

Like many States, Colorado has a law forbidding businesses from engaging in discrimination when they sell goods and services to the public. Laws along these lines have done much to secure the civil rights of all Americans. But in this particular case Colorado does not just seek to ensure the sale of goods or services on equal terms. It seeks to use its law to compel an individual to create speech she does not believe. The question we face is whether that course violates the Free Speech Clause of the First Amendment.

Question Presented

Artist Lorie Smith is a website designer who creates original, online content
consistent with her faith. She plans to (1) design wedding websites promoting her
understanding of marriage, and (2) post a statement explaining that she can only speak
messages consistent with her faith. But the Colorado Anti-Discrimination Act (CADA)
requires her to create custom websites celebrating same-sex marriage and prohibits her
statement–even though Colorado stipulates that she “work[s] with all people regardless
of … sexual orientation.” App.53a, 184a.

The Tenth Circuit applied strict scrutiny and astonishingly concluded that the
government may, based on content and viewpoint, force Lorie to convey messages that
violate her religious beliefs and restrict her from explaining her faith. The court also
upheld CADA under Employment Division v. Smith, 494 U.S. 872 (1990), even though
CADA creates a “gerrymander” where secular artists can decline to speak but religious
artists cannot, meaning the government can compel its approved messages.

The questions presented are:

1. Whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist’s sincerely held religious beliefs, violates the Free Speech or Free Exercise Clauses of the First Amendment.
2. Whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable under Smith, and if so, whether this Court should overrule Smith.

government forcing an individual to create speech on
weighty issues with which she disagrees

Held

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. In the past, other States in Barnette, Hurley, and Dale have similarly tested the First Amendment’s boundaries by seeking to compel speech they thought vital at the time. 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. Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider “unattractive,” post, at 38 (opinion of SOTOMAYOR, J.), “misguided, or even hurtful,” Hurley, 515 U. S., at 574. But tolerance, not coercion, is our Nation’s answer. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. Because Colorado seeks to deny that promise, the judgment is reserved