DOES THE FIRST AMENDMENT ALLOW BIAS?

• Author: Lueders, Bill
• Position: FIRST THINGS FIRST - 303 Creative LLC v. Elenis

Lorie Smith says she's just trying to speak her mind. The Colorado website designer claims her ability to do so is being thwarted by a state law that prohibits her from turning away LGBTQ+ people. "Colorado is censoring and compelling my speech," Smith contends. "Forcing me to communicate, celebrate, and create for messages that go against my deeply held [religious] beliefs."

In a case now before the U.S. Supreme Court, Smith is seeking the right to refuse to design wedding websites for same-sex couples, arguing this would violate her Christian values.

No same-sex couple has tried to hire Smith to design a wedding website, and the state of Colorado has not taken any legal action against her. Her lawsuit over Colorado's law barring public accommodations--businesses open to the public--from discriminating against potential customers based on sexual orientation, is entirely preemptive.

Smith's attorney, Kristen Waggoner of the "faith-based legal organization" Alliance Defending Freedom, earlier represented Colorado baker Jack Phillips, who was prosecuted under this same law for refusing to make a wedding cake for a same-sex couple. In a 2018 decision, the Supreme Court found that the state had shown anti-religious bias toward Phillips but did not settle the question of whether businesses can refuse service to LGBTQ+ people due to religious objections.

Now the high court, with a 6-3 conservative majority, is poised to decide, once and for all, whether the Colorado law violates the First Amendment. It is likely to do so in a way that expands the ability of businesses to deny services to members of protected classes.

The case, 303 Creative LLC v. Elenis, pits freedom of speech against the right to be free from discrimination based on race, gender, religion, or sexual orientation. Smith and her team are arguing, essentially, that discrimination is protected speech for people engaged in expressive services. Indeed, they claim that Colorado's law amounts to coerced speech, because it forces people like Smith to convey that they are OK with same-sex marriage, even if they aren't.

It does no such thing. Smith is free to not do business with the general public. She's free to say that she doesn't believe same-sex couples should be allowed to marry. She would even be within her rights to post a denunciation of same-sex marriage on every page of the websites she designs.

Opponents of Smiths lawsuit, prominently including the American Civil Liberties...