On December 5, the US Supreme Court will hear the latest case involving a wedding vendor, Lorie Smith, the owner of a graphic design company in Colorado, who, because of her religious beliefs about marriage, is the target of an anti-discrimination law. This case, again originating from Colorado, gives the High Court an ideal chance to resolve a recurring conflict and clarify how anti-discrimination laws should interact with religious speech.
Ever since the Supreme Court interpreted the Constitution to include a right to same-sex marriage, many justices foresaw “[h]ard questions aris[ing]” that “will soon be before this Court.” They were right.
In just seven years, the Court has needed to address the religious freedom rights of those that design cakes, floral bouquets, and now, websites. Every case presents the same core question: Can the government force wedding vendors to speak against their conscience?
Up to now, no case has definitively resolved this question, and “many important questions remain open.”
The case before the Court, 303 Creative (the name of Smith’s company), is an ideal opportunity to finally address this issue. Both sides agree that 303 Creative, by designing wedding websites, does something “expressive,” and “communicate[s] a particular message.” There is no argument that the underlying conduct is speech. The question becomes what speech gets protected. As the brief submitted by my law firm, the Becket Fund for Religious Liberty, explains, a simple way to resolve this dispute is based in the historical and traditional roots of free speech.
The First Amendment to the U.S. Constitution says that “no law” may abridge “the freedom of speech.” This guarantee was born out of centuries of conflict between government officials on one side and religious speakers on the other, including Thomas Becket and Thomas More—two Catholics who served English kings and who were murdered for speaking against the King and choosing the Church over royal authority. It also runs through Quakers like William Penn, arrested in 1670 for preaching to an unlawful gathering of fellow Quakers. And it continues here, to the United States, when Southern governments suppressed abolitionist religious speech, fearing that it would persuade Southerners to abolish the practice of slavery.
In response to English and then American governments contriving new religious speech restrictions, Anglo-American law developed another context to firmly protect the right to speak—or abstain from speaking—on religious grounds. Becket’s murder by the king’s knights inspired our modern understanding of separate spheres for church and state. More’s refusal to take an oath to King Henry VIII’s leadership over the Church in England is today the classic precedent behind a freedom from compelled religious speech. Penn’s prosecution for speaking to an “unlawful” Quaker meeting was part of the original public justification for the First Amendment. And the religious speech of-19th century abolitionists not only helped end the practice of slavery in the United States—it also granted Blacks First Amendment rights, primarily so they could worship together on the Sabbath.
Yet the more recent Supreme Court’s free speech doctrines have made little use of history and tradition. Instead, since at least the 1970s, free speech law is rooted in Court-contrived doctrines. They rest on the idea, expressed in Cohen v. California, that “no readily ascertainable general principle” exists to distinguish protected speech.
There are real-world harms to taking an ad hoc approach to the freedom of speech. Start with Jack Phillips, owner of Masterpiece Cakeshop, who is facing abusive litigation even after the Supreme Court protected his religious freedom. Now in his third lawsuit, he is being sued over a request that he provide a transgender-themed cake.
Consider also Barronelle Stutzman, former owner of Arlene’s Flowers. Washington State sued Stuzman—in a case lasting over a decade—because she refused to create custom floral arrangements against her religious beliefs. After the Supreme Court declined to take her case, she retired and settled her case out of court (but was still required to pay $5,000 to those that sued her). Or Aaron and Melissa Klein, owners of Sweetcakes by Melissa, who also refused to create a custom wedding cake which would have gone against their beliefs. Oregon fined them $135,000 (and suggested their beliefs needed “rehabilitation”). The First Amendment requires none of this.
The solution is straightforward: Uphold religious speech for what it is, the historical core of freedom of speech (along with political speech), thereby capable of restriction only when it threatens “peace and safety” or promotes “licentiousness.” Here, Colorado’s marketplace access and dignity justifications come nowhere close.
As the Court grapples with yet another religious wedding vendor case, Anglo-American history and tradition provide a simple answer: Return free speech to its roots, and uphold the long history of religious freedom from compelled speech.
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