Colorado is trying to force a Christian business owner to create (and thereby, endorse) a message that she disagrees with, but Lorie Smith is fighting back. The Supreme Court heard oral arguments for Smith’s case, 303 Creative v. Elenis, on Monday, December 5, and we are hopeful the high court will uphold her free speech and religious liberty rights.
Smith designs websites for weddings as long as they align with her belief that marriage is a union of one man and one woman. However, the Colorado Anti-Discrimination Act wrongfully forces her to create websites for same-sex marriages. Smith is willing to serve customers regardless of their sexual orientation; she simply refuses to celebrate an unbiblical view of marriage, as is her right.
The hearing lasted for over two hours, and the court debated several questions regarding line-drawing. For example, was Smith’s refusal to create websites for same-sex marriages based on the message of the website or the sexual orientation of the couple? Was her refusal an expression of speech, and therefore protected by the First Amendment, or of conduct?
The left-leaning justices led the questioning of Alliance Defending Freedom’s Kristen Waggoner, who is representing Smith. The justices clearly believed Smith was denying the couple her services based on status.
Justice Elena Kagan asked Brian Fletcher, an attorney representing the state of Colorado, what could happen if the court rules in Smith’s favor. Fletcher argued that the court could allow racial discrimination if it upholds Smith’s right to free speech. He pointed to the Supreme Court’s decision in Runyon v. McCrary, a case in which a private school’s admission policy discriminated against black children. However, this comparison is irrelevant. The court’s decision in Runyon v. McCrary did not involve freedom of speech, and the skin color of a teacher’s students wouldn’t change his pro-segregation message.
Thankfully, the conservative justices seemed to lean in the opposite direction. In a debate with Colorado Solicitor General Eric Olson, Justice Neil Gorsuch referenced Colorado’s treatment of Jack Phillips, who was the subject of a very similar case, as forcing him into a “re-education program.”
Waggoner argued that Smith isn’t just selling a service and engaging in conduct, but is conveying a message with her website designs. She highlighted the fact that the Supreme Court has refused to force someone to convey a message that violates his or her beliefs time and time again in the past.
She asserted that Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston should govern Smith’s case. In this case, the Supreme Court ruled that Massachusetts could not require the St. Patrick’s Day parade organizers to allow an LGBTQ group to participate in the march. Similarly, the government cannot force Smith to celebrate an LGBTQ relationship.
Colorado Solicitor General Eric Olson retorted by pointing to Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), in which the Supreme Court ruled that a law withholding federal funding from colleges that restricted military recruiters’ access to students did not violate the First Amendment. He argued that the FAIR ruling “regulates conduct, not speech” because it set guidelines for what the schools could do rather than what they could say.
Chief Justice John Roberts pushed back on Fletcher’s reliance on FAIR, rightfully stating that the case involved a completely different type of compulsion than the forced speech in Smith’s case.
Then Justice Amy Barrett presented several hypotheticals about other types of marriages or situations that might violate Smith’s beliefs, such as heterosexual marriages that began as adulterous relationships. Waggoner said that Smith would not create websites for those couples either, proving that her refusal is based on the message the website sends, not the status or sexual orientation of the couple.
Justice Barrett noted that Smith says on her website that she fully customizes “the look, feel, theme, message, color palettes, et cetera” of each website she designs.
Gorsuch then voiced the critical distinction of this case, saying, “So, the question isn’t who, it’s what?” Waggoner agreed. This is the question that this case hinges on, and our conservative justices seem to be on the right track.
WFA joined with other pro-religious freedom organizations to file a friend-of-the-court brief before the U.S. Supreme Court in support of Lorie Smith. We are hopeful the conservative justices (which comprise a majority) on the court vote in favor of free speech and religious liberty, as they seem poised to.
If the government can compel Lorie to create a message she disagrees with, it can do the same to any of us. Please pray the high court upholds our First Amendment rights.
Stories of school districts violating parents’ rights with transgender policies continue to emerge, and WFA is helping to fight back.
The Linn-Mar Community School District, located in Cedar Rapids, Iowa, implemented a policy earlier this year barring the district from informing parents of a student’s transgender status unless the student provides authorization. Under the policy, students can also decide whether or not their parents attend meetings with a school counselor to receive support and implement a “Gender Support Plan.”
The Eighth Circuit Court will hear oral arguments for this case in February 2023. To defend parental rights, WFA has signed onto a friend-of-the-court brief, along with the Ethics & Religious Liberty Commission (ERLC), the Baptist Convention of Iowa (BCI), and other organizations to defend parental rights.
The brief says that the Parental Preclusion Policy “permits students and schools to determine the name and pronouns that a student will use at school, to decide the gender of those that the child will sleep with on school trips, to select which restroom and locker room to use at school, and to determine which gender sports teams to join, all without parental notification or consent.”
By hiding pertinent information about students, the school district violates parents’ right to “direct the care and education of their children,” and violates their due process protections.
The U.S. Constitution “protects parental interests as fundamental,” reads the brief. “This policy’s underlying rationales – that parents do not act in their children’s best interest and schools may trump parental authority when they suspect they might disagree with parental decisions – provide no permissible justification whatsoever.”
“It is parents who are given the primary right to care for their child, not school counselors, teachers, or principals. [F]undamental parental rights, like other fundamental rights, may only be curtailed or withheld after notice and due process,” the brief continues.
The Linn-Mar Community School District is clearly prioritizing a radical ideology over parents’ fundamental rights, and WFA is proud to take a stand for parents and children’s safety.
In another recent case, former school counselor at Allen-Field Elementary School in the Milwaukee Public School District (MPS) Marissa Darlingh was fired for exercising her First Amendment right to free speech. At a feminist rally, Darlingh expressed her concern about the dangers associated with “gender identity ideology,” especially for children.
Darlingh has filed a lawsuit against the school district in the United States District Court for the Eastern District of Wisconsin in Milwaukee, and she is being represented by the Wisconsin Institute for Law and Liberty.
“The District has blatantly violated Ms. Darlingh’s First Amendment rights. Firing her for expressing her views on such an important subject is not only inexcusable, but unconstitutional,” said WILL Deputy Counsel, Luke Berg.
The lawsuit alleges that the district violated Darlingh’s First Amendment and Due Process rights, as the termination letter cited her speech at the feminist rally as the reason for her termination. That speech was given on her own personal time outside of campus. The lawsuit seeks reinstatement to her position at the school, back-pay, and removal of the no-trespass order against her. We are hopeful that this case will affirm the First Amendment rights of all teachers.
Schools are now pushing radical gender ideology on students, hiding information about students’ gender identity from parents, and punishing those who disagree with their ideology. While the success of these lawsuits will help, we need parents and teachers to stand up and assert their rights. Parents have every right to know exactly what is going on in the classroom, and teachers have every right to condemn a radical ideology that is harming children.
Please pray for the success of these lawsuits and an end to radical indoctrination in the classrooms of government schools.
In a 6-3 decision, the Supreme Court earlier this week affirmed Coach Kennedy’s right to silently pray in public after high school football games in Kennedy v. Bremerton School Board.
For years, Kennedy would pray very briefly by himself following football games. At one point, students became curious about what he was doing. When asked if they could join, he told them it was a free country, and they could do what they wanted. As time went on, more and more students and even coaches from other teams joined in.
After nearly half the team began to participate in these short prayers, the school told him he could no longer pray publicly. Kennedy initially obeyed the order, but later believed it violated his freedoms of speech and religion. He felt responsible to thank God for the games in that way. So, he continued to pray; and as a result, lost his job.
WFA signed onto a friend-of-the-court brief filed with the U.S. Supreme Court in order to support Coach Kennedy and urge the court to protect religious freedom. The brief argued that the First Amendment was expressly written to protect our right to exercise our religion in just such situations as Coach Kennedy did.
Thankfully, the high court upheld Coach K’s right to freely live out his faith in public.
“The Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal,” wrote Justice Neil Gorsuch in the 6-3 majority opinion, adding that the Constitution “neither mandates nor permits the government to suppress such religious expression.”
The court rejected the school district’s argument that the coach’s prayers were “coercive” of the players. The decision also corrects the widespread misconception that religious speech and actions must be suppressed to avoid the First Amendment’s ban on the “establishment of religion.”
“Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s,” Gorsuch wrote in the majority opinion. “Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”
As the high court claims, our constitution does not require us to abandon our religious traditions and the Establishment Clause does not require schools to fire a coach like Joseph Kennedy.
“Today, the Supreme Court reaffirmed a long-standing principle, correctly ruling that teachers and other school employees do not surrender their First Amendment rights at the schoolhouse gate,” Sarah Parshall Perry, a senior legal fellow for The Heritage Foundation, said in a statement.
This is a monumental victory for religious freedom throughout the United States. It serves to protect teachers who bow their heads to give thanks during lunch in the cafeteria, or school employees who wear a cross or religious symbol, as the opinion specifically mentions.
It will not only help preserve a free and diverse society, but also uphold human dignity, which is inseparable from the freedom to express one’s deeply held beliefs.
Milwaukee Public Schools (MPS) counselor Marissa Darlingh spoke at a feminist rally at the Wisconsin State Capitol in April. During her speech, Darlingh claimed that she “oppose[s] gender ideology” in schools and that children should not be “exposed to the harms of gender identity ideology” or given “unfettered access to hormones—wrong-sex hormones—and surgery.”
She went on to argue that she “exist[s] in this world to serve children” and “to protect children,” and therefore opposes the social or medical transition of children. At one point, she said “[expletive] transgenderism.”
On April 29, the Wisconsin Department of Public Instruction (DPI) informed Darlingh that she was under investigation to determine whether she could keep her educator license because she engaged in “immoral conduct” at the rally. A letter sent to Darlingh cites her use of profanity as well as her statements “oppos[ing] gender identity ideology from entering [her] school building” and her claim that she “do[es] not believe children should have access to hormones or surgery” as examples of her “immoral conduct.”
DPI is violating the First Amendment. Darligh has the right to speak out against gender ideology without fear of losing her job. Thankfully, the Wisconsin Institute for Law and Liberty is standing up for her.
WILL sent a letter to DPI reminding the agency of Darlingh’s First Amendment rights. The counselor’s speech was on a Saturday, outside of school, and she spoke out as a private citizen. Further, state law clearly defines “immoral conduct” as conduct, not speech.
WILL has threatened to file a First Amendment lawsuit in federal court if the DPI attempts to revoke Darlingh’s license.
We need more school teachers and staff to speak out against gender ideology as it is being injected into lessons and feeding children with harmful lies. However, educators can only protect children if their First Amendment rights are respected.
This case sets an important precedent. State agencies have no right to control the speech of anyone, especially speech at a public rally on an employee’s own time. If the agency does revoke Darlingh’s license, it will be sending a dangerous message to the rest of Wisconsin school employees—that their public expressions must align with the agency’s ideology, or there will be consequences.
Further, this case should concern every American, as an attack on free speech anywhere is an attack on free speech everywhere. We are seeing our right to free speech diminish as more and more government agencies and companies crack down on speech they disapprove of.
To restrict the freedom of God’s creation is to violate God’s design. Please pray that WILL’s efforts to protect free speech are successful and that God will raise up godly school personnel who will not be afraid to speak up and truly act in the best interest of the children in their care.
WFA also wants to remind everyone that education freedom is alive in Wisconsin through the multiple educational options we have.