In New York Times Op-Ed, the ACLU's National Legal Director Is Just Wrong on the Latest Religious Liberty Case

AP Photo/Mark Lennihan, File

On Monday, the New York Times – the same Gray Lady that fired editors and had a near riot in the newsroom after it published an op-ed by Tom Cotton – published an opinion by David Cole, the national legal director of the ACLU. Mr. Cole discusses the case of 303 Creative v Elenis. 303 Creative was sued for refusing to create a same-sex wedding website. By creating an artistically creative message via a website, the owner argues that she would be compelled to speak a message her Christian faith tells her, is wrong.  In Mr. Cole’s opinion, Colorado can force a for-profit business to speak a message that violates the tenets of one’s religion.


The Times should publish various opinions. The point of commentary (like my cartoons) or the opinions of people with whom I disagree is to generate discussion. It’s the core of American discourse. Let competing ideas fight and may “the best man win”.

But, Cole offers no new arguments. His essay is, for the most part, and shortened version of the appeals court’s 2-1 decision in favor of Colorado’s law, but he frames it as a binary. The court, in his opinion, will ask the wrong questions.

There are over two dozen Amici Curiae who have filed briefs against 303 Creative.

He writes:

Can an artist be compelled to create a website for an event she does not condone? That’s the question the Supreme Court has said it will take up on Monday when it hears oral arguments in 303 Creative v. Elenis. The answer would seem to be obviously “no.”

But that’s the wrong question. The right question is whether someone who chooses to open a business to the public should have the right to turn away gay customers simply because the service she would provide them is “expressive” or “artistic.” Should an architecture firm that believes Black families don’t deserve fancy homes be permitted to turn away Black clients because its work is “expressive”? Can a florist shop whose owner objects to Christianity refuse to serve Christians? The answer to these questions would seem to be, just as obviously, “no.”

Cole, like all who object to 303 Creative refusing to create a specific message celebrating a gay couple’s marriage, employs an overused and lazy sleight of hand. Rather than focus on 303 Creative’s religious objection to forced speech, Cole immediately uses racism as a similar example.


The two are not the same, though. And the answer can be summarized thusly to counter Cole’s examples: 303 Creative has never refused and never would refuse service to black patrons.

To turn Mr. Cole’s argument around, 303 Creative would not have been sued and Colorado would not have pursued 303 Creative if, for example, a black man who is a follower of the former calypso singer and present black supremacist and weirdo, Louis Farrakhan had requested that 303 Creative produce a website declaring whites are demons and Farrakhan is the voice of God. That would be compelled speech and the commission would have agreed. So would the ACLU and, I assume, so would Mr. Cole.

The owner of 303 Creative, Lorie Smith, is a faithful Christian. She was targeted by a gay couple not because she is the only website creator in America or the best, but because she is a Christian.

Smith has repeatedly pointed out (and the court that ruled against her agreed) 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.” 

Nonetheless, the court ruled against her. Mr. Cole argues that the public accommodation law, in place since the 19th century, doesn’t compel Smith to speak, it only compels him to operate fairly and evenly for everyone. Cole, like the two judges who ruled against her, purposely misses the point entirely: Smith never will and did not refuse service to a person. She has refused to voice a message that is against her religion.


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)).

Like the bakeshop case (Jack Phillips, Masterpiece Cakeshop), Lorie Smith is a devout Christian. She was targeted because she is a follower of Christ. She, like Phillips, was targeted for harassment. Smith creates websites for weddings. That is her business. Her Christian faith tells her that marriage is between a man and a woman. Colorado’s Civil Right Commission (CCRC) disagreed.

The CCRC did a couple of things concerning speech generally, and with 303 Creative specifically. The commission suppresses her speech and compels her 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. Yes, it’s a crime in Colorado. Once the case became public, Smith and her family were targeted with death threats and constant harassment.

Her case worked its way through trial court to the 10th Circuit Court. That court, in a 2-1 decision, ruled against her. Cole adopted the position of the two judges finding against 303. The findings of the majority were absurd. Smith never refused a gay or lesbian person’s services. She refused to engage in artistic expression celebrating (and by extension speaking for) gay weddings. It’s the message, not the messenger something Cole spends avoiding.  The 10th Circuit found that the CCRC can compel Smith to speak a message that she would otherwise not say.


Cole’s editorial spends most of its energy arguing that Smith can say whatever she wants, but once she hangs a virtual sign “open for business” she must speak for every message that walks through her virtual internet door. No, in fact, she doesn‘t have to drop her Christian faith and leave it at home simply because her website creations are “for profit.”

The 10th Circuit dissent went for the jugular and ripped a hole in 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.”).

Cole concludes his essay by repeating that Smith isn’t being compelled to not express her Christian faith, she just can’t make a living if she does because if she refuses anyone’s message no matter how abhorrent, she must speak that message if she wishes to make a living.

303 Creative has plenty of freedom to speak or not speak as it wishes. It need not serve the public and it need not design wedding websites featuring content it would not sell to anyone. But the First Amendment does not give it an exemption from laws requiring equal treatment of customers simply because its service is “expressive.”


Cole closes with:

Otherwise, interior decorators, landscape architects, tattoo parlors, sign painters and beauty salons, among countless other businesses whose services contains some expressive element, would all be free to hang out signs refusing to serve Muslims, women, the disabled, African Americans or any other group. The First Amendment protects the right to have and express bigoted views, but it doesn’t give businesses a license to discriminate.

Cole, like most liberals, presents the lazy argument and presents the tired “bigotry is allowed but you can’t make a living doing it” canard. But Smith isn’t refusing service to any other people he cites above. She is refusing a message and refusing to speak a message that she doesn’t agree with. She creates wedding websites. She believes that God sanctifies the union of man and woman. Her message has been accepted for thousands of years. If a gay couple with a straight child are planning a traditional marriage for that child, and the gay couple wants to pay for that service, Smith would gladly create a website. She like most Christians will serve anyone – gay, straight, Muslim, or disabled. She isn’t refusing a person, she refused to be the microphone for a single, particular message that violates her faith. It isn’t bigotry to refuse to broadcast a message your faith says is wrong.

Cole knows that but uses the same strawman arguments, and he’s wrong.


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