(Feb. 22) The Supreme Court has given itself another chance to say definitively that laws that compel particular forms of expression are null and void. As well it should.
The court agreed Tuesday to consider the appeal in the case of 303 Creative LLC v. Elenis, which is yet another challenge to Colorado’s law penalizing professionals for refusing to violate their religious beliefs. A straightforward reading of the First Amendment should make this an easy decision in favor of the professional — against Colorado’s despotic statute.
The Supreme Court already dodged the direct issue in a famous earlier case about Colorado’s law. In that case involving cake-maker Jack Phillips, the justices ruled that a Colorado commission could not force Phillips to make a cake celebrating a same-sex wedding ceremony — but only because commission members had expressed direct animus against Phillips’s religious beliefs. Having found animus in practice, the court avoided the larger constitutional question about whether a state may compel expression in general, much less expression in violation of one’s religious beliefs.
In sum, the punishment against Phillips was lifted, but the court avoided the question of whether the Colorado law itself was unconstitutional. That left Colorado free to try forcing other professionals to transgress their consciences, as long as the officials enforcing the law weren’t stupid enough to say aloud their bias against the religious beliefs at issue. (Meanwhile, Phillips himself is under renewed assault, but that’s another, albeit related, story.)
Colorado is now using its law against Lorie Smith of a website design company called 303 Creative. Like Phillips, she gladly serves gay customers in general, but she balks only at using her expressive capacities to design notices for activities, from people of any race or sexual orientation, that run counter to her religion — in this case, her belief that marriage can be only between one man and one woman.
In a 2-1 decision with reasoning that is not just wrongheaded but frightening, the 10th Circuit U.S. Court of Appeals ruled against Smith, openly concluding that Colorado’s law “permissibly compels [Smith’s] speech…. [Read the full column right here.]
