The Future of the First Amendment Hinges on the 303 Creative SCOTUS Case


The First Amendment guarantees that you can say or refrain from saying anything you wish. It is the fundamental right of a free nation to speak freely and not be constrained by any restrictions. The First Amendment is meaningless without it.

The Supreme Court will hear arguments in 303 Creative LLC v. Elenis this week. This case concerns Lorie Smith, a Colorado web designer who refused to make websites that contained messages that were contrary to her faith. This case will allow the court to not only strengthen the right of free expression but also to correct the useless Masterpiece Cakeshop. Colorado Civil Rights Commission decision (Masterpiece Cakeshop v. Colorado Civil Rights Commission) gave the government the power to impose crippling fines on Christian businesses as long as they didn’t express any animus towards their victims.

Monday’s New York Times article featured David Cole, national legal director at the American Civil Liberties Union. He said that “The First Amendment is Not a License To Discriminate” (before it was changed post-publication). Why?

This lie is at the core of the debate.

First, leftists want to frame the speech debate as a binary decision between discrimination and compulsion. If so, then free expression, which is explicitly set out in the Constitution should prevail over the right of a stranger who walks into a shop and demands that the owner tells him something he doesn’t believe. A shopkeeper wouldn’t be able to refuse to accommodate any gay customer if Sotomayor used his identitarian calculation.

Jack Phillips, Masterpiece Cakeshop owner, and Lorie Smith did not turn away any customer based on an immutable characteristic, sexual preference, or religious belief. They refused to send a message that was contrary to their sincere convictions. Smith would have refused to create a website for a gay groom’s cousin. Smith would have made a website for a gay customer. Straight couples would not have received a bawdy website, or a website declaring Xenu to be the true Lord of all the universe. It is a shame Cole and Sotomayor don’t understand the distinction.

Progressives pretend to be Christians, Islamic or Jewish. This is a new tactic to get gays out of shops. The notion that true marriage can only be between one male and one female genetically is a generational idea, I am confident. Barack Obama, a Democrat icon, had tied his opposition to gay marriage to his theology before his “evolution” on this question.

It doesn’t matter if you agree or disagree with this position when it comes down to speech. The Constitution does not contain a Hurt Feelings clause. Cole doesn’t want to address the question. He lists a series of frightening slippery slope hypotheses. Cole believes that a firm of architects who believe Black families don’t deserve fancy homes should be allowed to refuse Black clients for its work being ‘expressive’.

Let’s ask Cole, who claims that the ACLU has been the nation’s foremost defender of freedom of speech for over a century if he were to call on the state to intervene for an evangelical customer who wants to make a website for an organization that promotes homosexuality and works to repeal existing laws. Christians are, of course, also protected under anti-discrimination legislation. It is highly unlikely.

We need a diverse, open society. I don’t believe Cole or Sotomayor is able to make it so that one side can control the economic lives and livelihoods of those who disagree. There are many businesses that can bake the cake and create the website. Public accommodation laws were not intended to encourage minorities to support the political or theological views of the majority, but to stop discrimination against them.