OPINION:
The 303 Creative LLC vs. Elenis case, which was decided by the United States Supreme Court in June, is one that has come under intense scrutiny from liberal academics, legal scholars, the national media, and proponents of LGBTQ+ rights.
Although I respect their point of view, they still do not understand what this case is truly about. And it is not to unleash wanton “discrimination” against the LGBTQ+ community by those of us in the religious community.
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That would be wrong and it is something as a Christian, and as a member of a “marginalized” community myself, that I certainly do not support. What the Supreme Court has stated unequivocally, however, is that each of us has a right to be free in the exercise of our thoughts, our speech, and in our sincerely held religious beliefs, whether be in our small business, in our workplace, or wherever, we must be free from state coercion, intimidation, or worse being compelled to promote ideals, values or policies promulgated by the state that do not align with that God-given freedom.
The Court’s ruling is something that every single American regardless of race, gender, sexuality, or otherwise should emphatically and fully embrace. It is core to the ethos of America, to be free in all things and to pursue our individual happiness.
Lorie Smith, the plaintiff and creator of the web design firm 303 Creative, did not want to promote messages that are contradictory to her belief in biblical truths. Her goal was to expressly protect her beliefs in her business dealings from a Colorado statute compelling business owners to follow an “anti-discrimination” policy. She does not want to support messages that are antithetical to her faith and has even built websites for LBGTQ+ clients on projects that were consistent with her faith in the past.
“The artwork that I create is speech,” Mrs. Smith said, in an interview. “It matters not to me how an individual identifies. What’s important to me is what message I’m being asked to create and design for. And those messages must be consistent with my convictions.”
Let me tell you why I celebrate Smith’s case as a win not just for her, but for citizens like me.
In the fall of 2021, I was named a historic, first-ever black female scholar in residence at Christopher Newport University in Virginia. I had been teaching there for just a year as an adjunct professor of Religion & Philosophy. Additionally, I was named a co-founder of a proposed new “Women, Politics, and Policy Institute’’ that was approved by CNU’s President.
Like Smith, I am also a small business owner. And I was in a one-year contractual relationship with CNU at their behest to further our continuing relationship, which began in 2018. I had a whole life and career before entering teaching at the collegiate level, as an attorney, a congressional committee counsel, an award-winning author and journalist, a columnist, a national TV political and legal commentator, and I am also an award-winning “DEI” trainer and speaker.
I make the bulk of my living from my writing, speaking, and training. No one ever got rich teaching at a public university. That isn’t why any of us teach. It’s to train the next generation in freedom of thought, and debate, and to prepare them to thrive intellectually in a great nation founded on the ideals of individual liberty, religious liberty, and yes, diversity: E pluribus unum – out of many, one.
On October 11, 2021, “National Coming Out Day,” I tweeted a response to an article announcing that DC Comics was creating a teenage bi-sexual Superman character. My tweet was not an attack on gays, it was an expression of my concerns about the sexualization of children vis-à-vis a bi-sexual comic book Superman character.
I did this off-campus, not in the classroom, and I did not tag the university. It had nothing to do with my work there. I was commenting as an American on a news story and my belief that Christian parents would struggle to explain it to their children.
I simply and respectfully asked a question: How would Christian parents explain this to their kids in the context of their faith viewpoint?
Most importantly, my tweet was sent during the height of the 2021 Virginia gubernatorial race that was almost exclusively waged over parental rights and propelled Republican Glenn Younkin into office.
Unbeknownst to me, however, my tweet had been stalked by a bisexual professor at CNU. She tagged the university feed and started writing emails internally, demanding I be dealt with, suspended, reprimanded, or removed for tweeting my sincerely held religious beliefs.
I was informed by my Dean that my tweet caused an “uproar on campus.” This professor attempted to file a Title IX complaint against me, wrote statements, and petitions, incited LGBTQ+ students, alumni, and fellow faculty members against me, and engaged the media.
Ultimately, the president of CNU issued a public statement condemning my tweet and my views.
Worse, public forums were held on campus with me barred from participating, faculty wrote open hostile letters and columns attacking me…and then the coup de grace was a public protest held on campus, with a petition signed by over 1,000 people to have me removed.
When this happened, I was in surgery. Yes, you read that right. Surgery. And had no idea this was planned, approved and supported by the university until a day or so before when a disgusted student informed me via Instagram. This all happened. These are facts. And, I can prove every single word of it.
So let me be clear — I know exactly what it means to be compelled to fall in line with onerous diversity policies, or statements, that have become the norm in academia and in corporate America. And then reap the so-called “consequences” of losing my position and reputation for not adhering to them. This practice allows those who do not like our speech or points of view to damage careers, reputations, business dealings, and most of all mental well-being.
What Lorie Smith did was avert the nightmare I lived, by challenging an unconstitutional law compelling Christians to violate their own free speech rights and religious liberty in order to conduct the business they dream of.
As the Supreme Court noted in 303 Creative LLC vs. Elenis Smith’s dilemma:
“If she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs, sanctions that may include compulsory participation in “remedial … training,” filing periodic compliance reports and paying monetary fines. That is an impermissible abridgment of the First Amendment’s right to speak freely. Hurley, 515 U. S., at 574. The court continued, “The framers designed the Free Speech Clause of the First Amendment to protect the “freedom to think as you will and to speak as you think.” Boy Scouts of America v. Dale, 530 U. S. 640, 660–661 (internal quotation marks omitted). The freedom to speak is among our inalienable rights. The freedom of thought and speech is “indispensable to the discovery and spread of political truth.” Whitney v. California, 274 U. S. 357, 375 (Brandeis, J., concurring). For these reasons, “[i]f there is any fixed star in our constitutional constellation,” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642, it is the principle that the government may not interfere with “an uninhibited marketplace of ideas,” McCullen v. Coakley, 573 U. S. 464, 476. The First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well-intentioned or deeply “misguided,” Hurley, 515 U. S., at 574, and likely to cause “anguish” or “in- calculable grief,” Snyder v. Phelps, 562 U. S. 443, 456. Generally, too, the government may not compel a person to speak its own preferred messages.
I was bullied, harassed and demeaned in my place of work, and then publicly smeared as “a racist, a homophobe” and utterly ruined on my college campus and throughout the Commonwealth for a tweet asking a civil question about parental rights and a bisexual comic book character that was so poorly received that in 2022, DC Comics pulled the publication.
It simply did not sell. The truth is that the very “marginalized” groups that scream about equality, fairness and freedom, are the least tolerant of the rest of us, particularly religious conservatives. As a black female independent contractor, I am in a protected class under 42 USC Sec.1981. All of this was disregarded.
My rights were ignored, and subverted to those of another “marginalized” group deemed superior.
The real question we need to be debating in this nation right now is not whether gay Americans can now be discriminated against as a result of this ruling — they cannot be. We should be debating how we build truly inclusive spaces for us all. And how we both honor freedom and redefine it so that it is truly inclusive of all of us as human beings first.
College campuses and companies alike are struggling with how to manage diversity. It’s causing divisions and challenges like never before. We have to stop killing free speech, and free thought and focus on making sure all of us are in fact FREE to think, worship and speak our truth without fear of reprisal. That is America at her finest.
In the final analysis, the First Amendment belongs to all Americans, not just to speakers whose motives the government finds worthy or in line with what it deems acceptable speech.
But the Constitution does not work that way.
A true commitment to the free of speech of all, means that we will encounter ideas that are “misguided, or even hurtful.” (Hurley, 515 U. S., at 574.)
As Justice Neil Gorusch wrote for the court’s majority opinion: “[C]onsistent with the First Amendment, the Nation’s answer is tolerance, not coercion. 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.”
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Sophia A. Nelson is a Virginia-based lawyer. She is also an award-winning author and columnist. She can be reached here: https://iamsophianelson.com/
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