OPINION:
The Supreme Court on Monday heard the case of 303 Creative v. Elenis, involving a Christian graphic designer in Colorado who, for moral and religious reasons, refuses to design websites for potential customers related to same-sex marriage.
The high court is taking its third bite of this apple and needs to get it right this time. Kicking the can down the road again with a split-the-difference ruling as it did in June 2018 in the case of a Christian baker (coincidentally, also from Colorado) who declined to design custom wedding cakes for gay couples isn’t an option.
In its 7–2 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court ruled on narrow grounds that the commission had prejudiced the case with at least one member of the panel openly expressing hostility toward religion, violating bakery owner Jack Phillips’ rights to free exercise. The justices reversed the commission’s ruling against Mr. Phillips, but they didn’t rule on the broader conflict between anti-discrimination laws and the free exercise of religion and freedom of speech.
This time, the Supreme Court needs to rule definitively and unequivocally that compelled speech is not free speech and in favor of the First Amendment right not only to merely hold religious beliefs but also to be able to live them out in practice.
That need takes on added urgency in light of the lame-duck Congress’ near-certain passage this week of the so-called Respect for Marriage Act. If it becomes law, it will only further embolden the militant LGBTQ left to compel obeisance to its agenda through costly lawsuits against religious conscientious objectors.
The euphemistically named Respect for Marriage Act, which passed the Senate on Nov. 29 with the inexplicable acquiescence of 12 Republican senators, would codify into federal law a right to same-sex marriage that an imperious Supreme Court forced upon the country in a 5-4 vote in 2015 in Obergefell v. Hodges.
If, as expected, the Democrat-led lame-duck House concurs and sends the Respect for Marriage Act to President Biden for signing into law, it will likely be open season on Christians and others who believe marriage is the union of a man and a woman, as it had been universally understood until just the past decade or two.
The Respect for Marriage Act is all but certain to open a floodgate of lawsuits aimed at forcing the likes of web designer Lorie Smith of 303 Creative to either violate her conscience or get out of the graphic design business altogether. Sen. Mike Lee, R-Utah, offered an amendment to the Respect for Marriage Act specifically aimed at protecting the rights of Ms. Smith and others like her in the expressive arts not to be compelled by the government to express speech they disagree with. Mr. Lee’s amendment was defeated.
All of this places the ball squarely in the justices’ court (pun intended). They need to be reminded that free speech and the free exercise of religion are in the Constitution, right there in the First Amendment. Gay rights are not.
It really is no more complicated than that.
After all, it’s not like Ms. Smith is the only graphic artist in Colorado. Same-sex couples can take their business to almost any other website designer, who would happily take their money.
The only reason the LGBTQ left would target Ms. Smith and others like her as they have is that they don’t believe tolerance should be a two-way street. They need to be reintroduced to the concept of “live and let live.”
So, we’ll say it again: The Supreme Court can do that in 303 Creative v. Elenis by coming down affirmatively and unambiguously on the side of free speech and the free exercise of religion.
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