Other countries mouth allegiance to free speech, but only in America is it real. Only in America is there a Constitution demanding it. In Europe and Canada, it’s an illusion. In our country, freedom of religion is an expressed part of our 1st Amendment. Whether a religious person is compelled to agree with something contrary to their religion is now before the U.S. Supreme Court. By the end of the present Court’s term, we will see if it still applies.
Jack Phillips is the Colorado baker who was harassed by radicals and sued by the state of Colorado. His sin was being a Christian. He refused to bake a cake celebrating a same-sex marriage. Because he wouldn’t bake a cake for a gay wedding, he was sued. His case made its way to SCOTUS, only to see the Roberts’ court “kiss its sister” and punt on the central issue of his 1st Amendment rights.
Instead, the Court ruled that Colorado’s Civil Right Commission was so hostile to Phillips–and had shown obvious anti-religious bias in enforcing its so-called anti-discrimination law–that it was null. The Court found that the commission members were dismissive of religious beliefs – but didn’t find the law unconstitutional.
Phillip was harassed again, this time by a biological male–identifying as a woman–named Autumn Scardina. Scardina sought out Phillips. Scardina asked for a blue frosted cake with a pink interior. When Phillip’s wife agreed to bake the cake, Scardina then told her what it was for.
Phillips declined to bake the cake for Scardina’s “transition.” It was a “gotcha” moment. Colorado went after Phillips again, but after SCOTUS ruled in Phillip’s favor, Phillips sued in federal court. The state dropped it, but Scardina didn’t. Scardina went after Phillips in state court. It is never about access or rights; it’s about bludgeoning people the left doesn’t like. The left wants to suppress speech they don’t like, and force speech they do like.
Like Phillips, a woman named Lorie Smith is a Christian and a target for harassment. She owns 303 Creative; Smith creates websites for weddings. Her Christian faith tells her that marriage is between a man and a woman. Colorado’s Civil Right Commission (CCRC) disagrees.
The CCRC does two things concerning speech generally, and with 303 Creative specifically. It suppresses speech and compels speech. Smith can’t express her Christianity on her website’s load page and, if she makes websites for heterosexual marriages, she must create websites for gay/lesbian/transsexual weddings. Six years ago, Smith was targeted by a gay couple and sued by the CCRC. She faced monetary penalties and criminal prosecution. Smith and her family have been targeted with death threats and constant harassment. So much for the tolerant left.
Her case has worked its way through trial court to the 10th Circuit Court. That court, in a 2-1 decision, ruled against her. The findings of the majority are, in short, confused and absurd. Smith never refused a gay or lesbian person services; she, like Phillips, refused to engage in artistic expression celebrating gay weddings. It’s the message, not the messenger. The 10th Circuit found that the CCRC can compel Smith to speak a message that she would otherwise not say.
The dissent went to great lengths to dissect the majority’s tortured opinion. In part, the dissent said:
The majority tells us not to worry because Colorado has good reasons to violate Ms. Smith’s conscience for the greater good. After all, she is only one person out of many. But this is misguided. See Barnette, 319 U.S. at 638 (“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”).
In an episode of “The Megyn Kelly Show” podcast, Lorie Smith said: “I cannot communicate my views on the topic of marriage.” Her lawyer added that “if the government can sensor Lorie, it can censor anyone.” They are both right.
Inarguable stipulations of fact are before the court.
As detailed in Smith’s reply brief, the 10th Circuit recognized that:
(1) Smith does not discriminate against anyone, but only declines to speak certain messages;
(2) Smith’s websites are “pure speech”;
(3) the Accommodation Clause forces Smith “to create custom websites [she] otherwise would not”; and
(4) CADA is a content-based rule that creates a “substantial risk of excising certain ideas or viewpoints from the public dialogue.”
Pointedly, a public-accommodation law is unconstitutional, when the law “alter[s]” a speaker’s “overall message,” Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995)
This case could (and should) have far-reaching ramifications, because the first Phillips case really settled nothing. The Court punted on Phillips. John Roberts and Justice Kennedy are to blame for it. Fortunately, Kennedy is gone, and there is a real chance that the present Court, with dominant Justices Thomas and Alito, will put some teeth back into the 1st Amendment. Just last week, a photographer was sued under New York’s civil rights law because he wouldn’t participate in a gay wedding. He, like Smith and Phillips, was targeted by leftists looking to shut people up and stomp on the 1st Amendment, including the rights of Christians — in fact, anyone who disagrees with them.
This is not a “free exercise” case. It is a free-expression case, a compelled speech case, but it has a chance of crossing over to touch on free exercise.
Oral argument has not been set for this matter.
SCOTUS has a chance to make things right. Let’s hope it does.