Civil Liberties, Constitutional Law, Featured, Uncategorized

Bingham: Colorado’s free speech trampling needs a SCOTUS rebuke

I’m about to describe what should be a simple First Amendment case. Lorie Smith of Colorado has a business designing websites for special events, including weddings. Lorie is a Christian who holds the traditional belief that marriage is the union of one man and one woman, and she is not willing to design websites that promote alternative models of marriage, like same-sex or polygamous marriages.

Lorie objects to betraying her beliefs about marriage through her work, but she doesn’t discriminate against any customers. In other words, she’ll gladly design a website promoting an LGBT person and their business, but she won’t design a website promoting a gay wedding or a polygamous wedding for anyone, regardless of sexual orientation or gender identity.

But Colorado has told Lorie that under its so-called “anti-discrimination” law, the Colorado Anti-Discrimination Act, or CADA, she can’t design websites for traditional marriages unless she also designs websites promoting same-sex marriage.

You probably don’t need to be a constitutional law expert to notice there’s more than one First Amendment problem here. The First Amendment bars states from “prohibiting the free exercise” of religion. It also bars them from “abridging the freedom of speech.”

But the First Amendment didn’t deter Colorado from attacking Lorie’s freedoms of speech and conscience. That’s where the courts are supposed to step in. So Lorie and her attorneys at the Alliance Defending Freedom sued Colorado, seeking to vindicate her constitutional rights. But a federal district court judge rubber-stamped Colorado’s attack.

Ok, that’s where the appellate courts are supposed to step in. But the Tenth Circuit Court (which covers Colorado) also got the case egregiously wrong. It acknowledged that Lorie was being compelled to speak the state’s message against her will, but also held that the state’s interest was so strong that the compelled speech was justified and constitutional. Lorie’s constitutional rights were once again ignored.

Constitutional law can be complex, but some basic free speech principles are straightforward. The government can participate in public debate by speaking up for its own point of view (for example, anti-smoking PSAs), but it can’t pass a law that seeks to eliminate an opposing viewpoint from public debate (for example, by banning the positive portrayal of smoking in movies). And it especially can’t force people like Lorie to speak up for a point of view they believe to be false. The First Amendment has nearly always been construed to ban compulsion, as well as suppression, of speech.

But discriminating against Lorie for her viewpoint and forcing her to speak things she believes are false are precisely what Colorado did here. That’s not just Lorie’s position. The Court of Appeals wrote that “eliminating [Lorie’s] ideas is CADA’s very purpose.” That’s right: the court agreed that the purpose of Colorado’s law is to eliminate traditional views about marriage from public dialogue. But it gave Colorado the green light anyway.

The Court of Appeals’ reasoning is, to put it charitably, dubious. It held that because artists are monopolists-unto-themselves, a state may force any artist who sells work promoting traditional marriages to voice support for same-sex marriage. But in its eagerness to invent a novel legal theory that would sidestep the Constitution, the court missed the fundamental purpose of the Free Speech Clause. Once the court conceded that Colorado was discriminating against Lorie’s views and forcing her to speak its own views instead, the matter should have been closed.

Ultimately, Lorie has been forced to appeal to the Supreme Court, which gets to decide whether to hear the case. Mountain States Legal Foundation, for which I work, has filed a brief supporting Lorie’s petition. But this case is unusual. Generally, the Supreme Court takes difficult cases; its time is too important to waste on legal questions a high school student could solve.

Colorado has a history of trampling free speech and free exercise of rights. Nearly ten years ago, the state famously tried to force a Christian cake maker to bake a cake for a gay wedding, in violation of his religious beliefs. The Supreme Court eventually ruled in favor of the cake maker, Jack Phillips, but Colorado continues to aggressively persecute Phillips to this very day. Lorie Smith’s case looks like bad history repeating itself, and, as her case shows, neither Colorado nor the lower federal courts got the message last time around.

When an appellate court gets such an easy case wrong, the Supreme Court may issue a summary reversal, which corrects the lower court’s ruling without bothering to waste time on briefing and oral argument. Alternatively, it could take the case for a full hearing and issue a more thorough rebuke to the judges.

It’s hard to know which would be better: a full hearing would give the court a chance to clarify its case law and make it harder for out-of-control appellate judges to avoid applying it faithfully, but a summary reversal might be a more fitting rebuke to the First Amendment’s enemies on the Tenth Circuit Court of Appeals.

What the Supreme Court must not do (although it can) is let the matter stand. That would send the message that lower court judges can heap contempt on the Bill of Rights and the Supreme Court will look the other way. It would spell bad news for our constitutional order. More importantly, it would be bad news for anyone like Lorie, who just wants to be allowed to say what she thinks – and not to say what she doesn’t.

Joseph Bingham is an attorney with Mountain States Legal Foundation.


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