Lorie Smith never planned to take a high-profile stand for First Amendment rights. Still, her appeal of a recent 10th Circuit Court decision to the Supreme Court will determine to what extent Americans can live and work in accordance with their deeply held beliefs without penalty.
By protecting the interrelated freedoms of speech, religion, and association, the Constitution protects the rights of Americans to live according to their conscience. In recent years, federal courts have been increasingly unwilling to protect conscience for some Americans, notably in commerce, who hold certain beliefs, notably in areas of sexuality and marriage. In some cases, like Lorie Smith’s, courts are not only ignoring conscience rights, they are actively undermining it.
Lorie Smith is a graphic designer in Colorado. Her company creates custom websites. She composes text, chooses or creates images, and promotes messages for her clients to use online. Lorie is a creative professional who uses her talents to express messages. If a client asks her to express a message that violates her conscience, Lorie politely declines the job.
The state of Colorado, however, has decided that Lorie does not have the right to choose which messages she uses her talents to express. The state has forbidden her, for example, from posting a notice on her website stating she is unable to create websites that express messages contrary to her Christian beliefs, including websites that promote abortion services, celebrate same-sex marriages, or advance a transgender ideology.
In July, a 10th Circuit Court panel ruled 2-1 that Colorado’s Anti-Discrimination Act could justifiably be used to force Lorie “to create websites—and thus, speech—that [she] would otherwise refuse,” even though that interpretation of the Act created a “substantial risk” of removing “certain ideas or viewpoints from the public dialogue”—such as Lorie’s Christian beliefs about marriage. In other words, a federal court ruled that a state can force a citizen to violate his or her conscience by removing or compelling certain speech about marriage, family, and sexuality in the world of commerce.
Colorado attempted something similar with Jack Phillips, owner of Masterpiece Cakeshop, in 2018. Ultimately, the Supreme Court ruled against the state for mistreating Jack and denigrating his religious beliefs, but that hasn’t stopped Colorado from attempting to punish other creative professionals for their beliefs. Though this clearly violates First Amendment freedoms, states like Colorado justify their actions by citing nondiscrimination laws. However, nondiscrimination laws are designed to ensure that people have access to services. When creative professionals like Lorie Smith and Jack Phillips decline a job because it violates their deeply held beliefs, it’s about the message, not the person. In the same way, a Jewish web designer should never be forced to design a website with anti-Semitic messages for a hate group, and a pro-LGBTQ baker should never be forced to communicate a message about marriage and sex that violates his or her own deeply held beliefs.
This ruling by the 10th Circuit, however, goes further than any bad ruling we’ve seen so far. Where the court, to borrow a phrase from Alliance Defending Freedom, really “went off the rails” is by conceding that Colorado did violate Lorie’s First Amendment rights, but was justified in doing so. This is not because of public accommodation, but because of the state interest in advancing so-called LGBTQ “rights.” If the state is allowed to violate First Amendment rights, what can’t it do?
Both Jack and Lorie have repeatedly said that they will happily serve anyone who comes through their door, but that they cannot express all messages. It doesn’t matter who is requesting the job. It only matters which message the job requires these creative professionals to express.
The First Amendment protects Americans’ freedom of speech, which includes not only the right to express one’s deeply held beliefs, even if controversial, but also the freedom not to be compelled to express something that violates one’s deeply held beliefs. In other words, the government cannot prevent someone from expressing his opinion, but it also cannot force someone to express an opinion, either.
It seems like it was yesterday when Christian beliefs about sex and marriage were considered mainstream. Today, they are among the most controversial and explosive beliefs. In a pluralistic society like America, it is especially the most controversial speech that needs protection. The state should not shield these controversial beliefs from criticism or coddle them from counterviews, mind you. But it also should not force anyone to give speech a platform or prevent someone from living from his or her own deeply held beliefs.
By ruling against conscience rights, as the 10th Circuit did in Lorie’s case, courts set a dangerous precedent. As Lorie wrote in an op-ed following the decision, “What my lawsuit has revealed is that the courts are even more open than many of us realized to letting officials punish religious freedom and silence free speech.”
The judge on the 10th Circuit panel dissented from the ruling, in his dissent, warned that this “unprecedented” and “staggering” ruling “subverts our core understandings of the First Amendment.” That’s why Lorie is appealing her case to the Supreme Court. The result will not just determine her rights as a person of conviction, but will outline the court’s view of the rights of all Americans who wish to live in accordance with their conscience.
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