The Supreme Court’s June 30, 2023 decision in 303 Creative LLC v Elenis, Case No. 21-476, held the State of Colorado could not compel a website author and publisher to create content celebrating same-sex marriages even if she created content celebrating traditional marriages. However, the Court’s rationale was not based on the author and publisher’s religious beliefs but on her First Amendment right to prevent the government from forcing her to say something she did not believe. Predictably, the Court’s decision has not been well-received in some quarters. Yet, this is hardly the first time the Court has issued an unpopular decision prohibiting the government from compelling speech. Perhaps he best known example is West Virginia Bd of Ed v Barnette (1943), handed down in the middle of World War II, holding the government could not compel the recitation of the pledge of allegiance.
The negative reaction to the Court’s decision was undoubtedly related to the fact it cuts against the grain of our increasingly individual-rights-based jurisprudence. If same-sex couples have the right to marry and the right to honeymoon at their resort of choice, how can it be they do not have the right to publicly celebrate their marriage on a website. The answer is constitutionally clear even if logically nuanced. Same-sex couples do have the right to publicly celebrate their marriages on websites. However, they do not have the right to enlist the government’s support in forcing someone who disagrees with same-sex marriage to write the celebratory message. This answer is completely in line with an unbroken line of Supreme Court precedents prohibiting the government from compelling any person to speak the government’s preferred message. Or, conversely, consistent with the well-understood principle that the First Amendment protects an individual’s right to speak his or her mind, regardless whether the government considers his or her speech sensible and well intentioned, deeply misguided, or even likely to cause grief.
Critics of the Court’s decision (who rely on the same First Amendment for their liberty to criticize the Supreme Court) may be concerned that 303 Creative represents the leading edge of a backlash against the last two decade’s lightning-fast reversal of centuries (in fact millennia) of hostility to the existence of individuals who were not traditionally heterosexual, much less their rights. Fair enough. But anyone who takes the time to read the decision will find such concern difficult to justify. The same “conservative” jurist, Justice Gorsuch, who authored the Court’s decision in 303 Creative, also authored its ground-breaking decision in Bostick v. Clayton County (2020), prohibiting employment-discrimination based on sexual orientation. Moreover, the Court’s opinion makes clear the Court has no intention of extending its decision's rationale in the direction of public accommodations or, in fact, in any other direction.
Critics of the Court’s decision may also wish to reflect on how our nation’s acceptance of civil rights for minorities was achieved. It was not pursuant to a regime that forced dissenters to repeat the government’s preferred message. To the contrary, it was according to the well-established First Amendment principles reiterated in and preserved by 303 Creative.