In a case that many described as pitting First Amendment rights against LGBTQ+ discrimination, the Supreme Court ruled in favor of a Colorado graphic designer who did not want to create wedding websites for same-sex couples.
The court decided in a six to three ruling along ideological lines that states cannot force artists to create speech that would violate their free speech rights. On Friday, Megyn called the ruling a “landmark” and was joined by attorney Kristen Waggoner, CEO of Alliance Defending Freedom, who represented the plaintiff in the case to discuss the high court’s decision and what it means for free speech.
303 Creative LLC v. Elenis
Graphic designer Lorie Smith, founder of the Colorado-based 303 Creative agency, sued the state over the Colorado Anti-Discrimination Act (CADA). The law prohibits businesses that provide sales or services to the public from denying services to someone based on their identity. Smith believed the law infringed on her First Amendment rights by forcing her to promote messages that violate her faith.
Smith and Waggoner appeared on The Megyn Kelly Show last October to talk about the case. At the time, Waggoner explained that there were two components to the law – one involves silencing speech and the other compels it.
The first is what required her to create websites for gay unions. “If she decides to go in and design custom websites… to show the beauty of marriages her faith teaches her, then she also has to show and do custom websites that shows the other view of marriage… between same-sex marriage,” Waggoner explained. “So that’s one way that the law compels her speech – it says if you’re entering this area, you have to speak messages that violate your convictions.”
The second has to do with governmental limits on speech. “A second component of the law also says you can’t speak out in terms of what your own beliefs are on your own website because it might make a customer feel unwelcome,” she explained. “I do think that it’s important to point out that… [because] regardless of our view on a particular issue, if the government can censor Lori, it can censor any one of us.”
For her part, Smith told Megyn that her case is about more than just her. “My faith inspires everything that I do, and I can’t separate my faith from my work,” she shared. “I cannot communicate a message that goes against my deeply held beliefs, and nobody should be put in a position of having to do so… whether your views are the same as mine or whether they’re different, nobody should be in a place of the government telling them they must communicate a message that violates their core beliefs.”
Smith has maintained that she does not have a problem working with the LGBTQ community in general. Her issue is specifically in regards to same-sex weddings.
The Supreme Court’s Ruling
In the six to three ruling, the majority included Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett. Justice Gorsuch authored the majority opinion and wrote in part:
“In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance…
But, as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong… Tolerance, not coercion, is our Nation’s answer. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. Because Colorado seeks to deny that promise, the judgment is reversed.”
In her dissent, Justice Sonia Sotomayor called the ruling “profoundly wrong.” She was joined by Justices Elena Kagan and Kentanji Brown Jackson. The minority opinion went on to say:
“Today is a sad day in American constitutional law and in the lives of LGBT people. The Supreme Court of the United States declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class. The Court does so for the first time in its history. By issuing this new license to discriminate in a case brought by a company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status. In this way, the decision itself inflicts a kind of stigmatic harm, on top of any harm caused by denials of service. The opinion of the Court is, quite literally, a notice that reads: ‘Some services may be denied to same-sex couples.’”
This is the second time the CADA law has been at the center of a SCOTUS case. In 2018, Masterpiece Cakeshop bakery won a case in which owner Jack Phillips refused to design and create cakes specifically for gay weddings.
What This Means for Free Speech
Joining Megyn just hours after the ruling came down, Wagoner said she and Smith are “delighted” by the decision. “It’s been seven years that Lorie has waited for justice and to be able to speak freely and even longer for others who would be impacted by this decision,” she said. “So, we’re thrilled about it, and we know that it’s a broad victory that protects the speech rights of everyone – even those who may disagree with Lorie or others on marriage.”
Megyn explained that she is “full of joy” after reading the court decision because of the wide-reaching effects it can have on laws around ‘forced speech’ – including those that seek to regulate preferred pronouns and the like. Wagoner said that she is currently working with a number of clients who have been fired or disciplined for referring to someone by their preferred name but not using pronouns at all when interacting with them. “This ruling is going to have a real and decisive impact on them,” she noted.
Ultimately, Wagoner encouraged Americans to read the decision, which she calls a “tour de force of our First Amendment law,” for themselves. “It explains why we protect speech – even speech that we might dislike – and the value that speech gives us – the pluralism that we have, the strong republic that we have, the curb on government authority, and why those things are so important,” she concluded. “It’s reaffirming law that was already in place, but it’s applying it to our cultural moment and that’s critical.”
You can check out Megyn’s full analysis of the SCOTUS decision by tuning in to episode 579 on YouTube, Apple Podcasts, or wherever you like to listen. And don’t forget that you can catch The Megyn Kelly Show live on SiriusXM’s Triumph (channel 111) weekdays from 12pm to 2pm ET.