Since at least the 1990s, Christians who want to exercise their faith freely saw the oncoming clash between their religious convictions and the rise of the LGBT movement. Even though a majority of the states and the federal government voted democratically to recognize marriage as between a man and a woman, we knew that the activist judiciary would come for those laws—and they did. But we also realized that as soon as the Left redefined marriage, they would jump off the tolerance train and start beating the discrimination drum. And so they did.
So now, we have gone from, “Please don’t redefine marriage through the judiciary” to “Please don’t make us praise something we find sinful.” It is a sad day in the land of the free when we have to fight for something that the First Amendment so obviously protects. But here we are.
Enter Lorie Smith and her company, 303 Creative LLC. Smith lives in Denver, Colorado, which strangely has become the epicenter of the biggest of these fights over the last decade. Smith is a Christian creative professional who builds websites for people, including couples getting married. However, her faith forbids her from creating content that promotes messages contrary to her faith, including same-sex marriages. Even though she is willing to refer such customers to other vendors, Colorado will not permit her to do so. That state has issued her an ultimatum: support same-sex weddings or go out of business.
If we think that we are safe from such Orwellian rules here in deep red, highly religious Alabama, then think again. While we have not adopted such laws at the state level, the cities of Birmingham and Montevallo have adopted ordinances that criminalize Christian creative professionals politely declining to promote same-sex marriage. And last year, at the end of June, Montgomery Mayor Steven Reed pushed Montgomery to adopt such an ordinance. The Alabama Center for Law and Liberty led a campaign warning the city council that the city would lose badly if we brought a First Amendment challenge, and the council voted it down 5-4.
That’s good, but Montgomery is only one vote away from resurrecting that bad bill. But as the late Justice Antonin Scalia might say, if the Montgomery ordinance rises from its grave like a ghoul that has already been killed and buried, then the Supreme Court’s decision should bury it for good when it decides 303 Creative.
The Court’s five conservatives, and maybe even Chief Justice Roberts, should have no problem concluding that the Free Speech Clause protects one’s right to say “No, thank you” when the government tries to force people to speak a message that they find sinful. The five conservatives care a lot about the Constitution’s text (which by its very nature protects the freedom of speech) and history. In 2018, the Court took note of Thomas Jefferson’s view that forcing someone to pay for the propagation of ideas with which he or she disagrees is “sinful and tyrannical.” That shoe fits well here.
In addition, there is a mountain of precedent in our corner. From 1943 through 2018, the Court has repeatedly held that the government may not force people to promote ideas with which they disagree. Part of that, ironically, is thanks to the Court’s liberals. Old-school liberals actually respected free speech, even if some found it offensive. They created a mountain of precedent that now stands in the way of the New Left, which seeks to punish dissenters.
The Court will hear an oral argument in this case sometime in the fall, and we should expect a decision around June of 2023 (assuming we have no more leaked draft opinions). After that, hopefully, the Christian creative professionals of Birmingham, Montevallo and Montgomery can rest easy knowing that the issue has finally been settled.
Should the governments of these three Alabama cities try to punish Christian creative professionals before or after the Supreme Court renders its decision, then the Alabama Center for Law and Liberty stands ready to defend them. If those cities want to lose the lawsuit and then make a generous involuntary donation to ACLL in attorney fees, well … I suppose the least we can do is accept.
Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. His column appears every Friday in 1819 News. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].