The US Supreme Court heard oral arguments on a monumental free speech case. Here’s how it played out. 

The US Supreme Court heard oral arguments on a monumental free speech case. Here’s how it played out. 

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.  

Two crucial free speech and religious liberty cases are in court 

Two crucial free speech and religious liberty cases are in court 

Christian cake shop owner Jack Phillips and graphic designer Lorie Smith are fighting for their First Amendment rights in court. Hopefully their cases will reaffirm the right of every American to live or run a business according to their deeply held beliefs without fear or retribution.

In 2018 the U.S. Supreme Court heard Phillips’ case after a couple sued the baker for refusing to bake them a cake celebrating their same-sex wedding. The court ruled in Phillips’ favor and found that the state of Colorado had discriminated against him.

However, before the court gave its ruling, another complaint was filed against Phillips, this time for refusing to bake a cake celebrating a gender transition.

On the same day that the Supreme Court announced it would hear Phillips’ original case, Colorado lawyer Autumn Scardina called Phillips’ bakery to ask for a cake celebrating his transition from male to female. Scardina admitted that he only wanted to “challenge the veracity” of Phillips’ claim that he would serve LGBT people. Phillips’ family told Scardina they could not make the cake because the message it conveyed contradicted their personal beliefs.

Phillips has frequently served LGBT customers. He is not discriminating against the customers themselves. He simply refuses to make cakes with messages that contradict his religious beliefs such as Halloween cakes, sexually explicit cakes, and demeaning cakes, as is his God-given right.

A district court ruled against Phillips in this case, but Alliance Defending Freedom attorneys appealed the decision to the Colorado Court of Appeals.

ADF Senior Counsel Jake Warner says, “No one should be forced to express a message that violates their beliefs and conscience. Activists and state laws have threatened artists like Jack and graphic artist Lorie Smith because they can’t express messages on marriage and gender that violate their core beliefs. In this case, an activist attorney demanded that Jack create expressive cakes to test him and ‘correct the errors’ of his thinking. The attorney even promised to sue Jack again if the case is dismissed for any reason. Free speech is for everyone. The Constitution protects the freedom of every American to express ideas even if the government disagrees with those ideas.”

Warner is absolutely right. Phillips is completely within his rights to refuse to serve a same-sex wedding or bake a cake with an anti-Christian message. Hopefully, the Colorado Court of Appeals makes a decision informed by the Constitution. 

In Jack’s first case, the US Supreme Court granted Phillips a partial victory, but failed to address the heart of the issue: Does the Constitution protect freedom of speech and the freedom not to speak, as well as religious freedom, or does the LGBTQ agenda trump those rights? 

The good news is that the high court has a case this session similar to Jack’s, giving them another opportunity to get this issue right. Lorie Smith, a Christian graphic designer, is challenging the same law that brought Phillips to the Supreme Court.

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 forces her to create websites for same-sex marriages. 

This is an opportunity for the Supreme Court to affirm every artist and business owner’s right to refuse to send a message they don’t agree with. Let’s pray the court gets it right this time. 

Even WFA has been denied graphic design services more than once because of who we are and what we believe- even by vendors who say they are Christians. While we could sue, we never have, because as Christians, we really do believe business owners should have the right to refuse any business they wish. 

At the core of human dignity is our right to live in accordance with our deeply held beliefs. No one has the right to an artist’s services. Only the artist has the right to determine which services he or she will provide. While this First Amendment right is under severe and constant attack, Phillips and Smith’s cases give us a chance to realign the law with the Constitution and prevent more unwarranted complaints against Christian business owners.