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The Empty Words of the Religious Right

A woman in pink addresses a crowd holding blue signs on the steps of the Supreme Court

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Web designer Lorie Smith, the owner of 303 Creative, outside the US Supreme Court Building, December 5, 2022

You may have heard that some Supreme Court justices behaved badly at oral arguments for 303 Creative LLC v. Elenis in December. The case was brought by a right-wing legal organization called Alliance Defending Freedom (ADF). Its client is a web designer who wants to make wedding websites that promote her “religious belief that God designed marriage as an institution between one man and one woman.” But this plan runs afoul of a law in Colorado, where she works, that requires businesses to sell their products to all customers, no matter their sexual orientation. ADF is arguing that she has a First Amendment right not to sell the sites to gay fiancés.

Things got weird in the first half of the argument, when Justice Samuel Alito asked Colorado Solicitor General Eric Olson whether his state’s law would make a Black man dressed as Santa in a mall pose for pictures with a kid in a Ku Klux Klan robe. No, Olson explained, since supremacist costumes aren’t the kind of thing, like gender or race, that the state protects against discrimination. When Justice Elena Kagan clarified that this would be true regardless of the race of the kid, Alito retorted: “You do see a lot of black children in Ku Klux Klan outfits, right? All the time.”

This wisecrack, to a room of uncomfortable laughter, awed Court watchers. It suggested an almost giddy disregard of what is at stake in the case—whether businesses can lawfully turn away gay people. It also overshadowed an even odder comment from Alito’s colleague. Later in the argument, apropos of nothing, Justice Neil Gorsuch asked Olson about Jack Phillips, the baker at the center of a similar case that ADF argued in 2017, Masterpiece Cakeshop v. Colorado Civil Rights Commission. The Colorado Civil Rights Commission found that Phillips had refused to serve a gay couple and made him take a refresher on civil rights, a common remedy for lawbreakers. But at oral argument Gorsuch demanded that Olson call it something else.

“Mr. Phillips did go through a reeducation training program pursuant to Colorado law, did he not?” Gorsuch asked. When Olson began to respond, he interrupted: “It was a reeducation program, right?” Olson refused to call it that. He described it instead as a process to make sure that Phillips “was familiar with Colorado law.” Gorsuch replied: “Someone might be excused for calling that a reeducation program.” The term that Gorsuch was pushing describes prison camps for dissidents in Vietnam and for Uighurs in present-day China, sites of indoctrination and torture. His questioning may have seemed like a mystifying distraction during an eventful morning. But to ADF, it probably sounded like victory.

Founded by Evangelical Christians, ADF has been fighting since 1994 to undermine the rights of gay and trans people. In suits like this one, it has honed a cruel and effective legal strategy that relies on a First Amendment theory called the compelled speech doctrine. The doctrine—which means, more or less, that the government can’t force us to speak—originated during World War II as an essential safeguard of dissent and democracy. ADF has twisted it into a weapon against laws, like Colorado’s, that protect minority rights.

The group has pulled off this maneuver by branding its clients as defiant freethinkers and anti-discrimination laws as totalitarian decrees. Trump-appointed judges in lower courts have already been persuaded. Now Gorsuch, with his comparison between dictatorship and the protection of civil rights, seems to be, too. This spring, when the Court decides 303 Creative, we’ll see how far it is willing to go toward turning conservative fears into constitutional law.    

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To understand what ADF is doing now, you have to go back to 1943. The Court was still in its first few decades of interpreting the free speech clause of the First Amendment in roughly the way we understand it today, as a constitutional right you can’t be punished for exercising. Most of the earliest cases it had heard were about laws that restricted speech. In West Virginia State Board of Education v. Barnette, it was confronted with a state that had tried to make people speak against their will.

One month after the United States went to war against the Nazis, the West Virginia Board of Education ordered its students to recite a pledge of allegiance. It was like today’s—“with liberty and justice for all”—except that instead of placing their hands on their hearts, the students were told to stretch their arms out stiffly to the flag. As one might guess, parents complained that this looked like the Sieg Heil salute. But it was Jehovah’s Witnesses who went to court. They argued, for their own pious reasons, that students shouldn’t have to recite the pledge at all.

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The school board had violated the First Amendment, the Court decided. Justice Robert H. Jackson, who would go on to prosecute Nazis at the Nuremberg trials, wrote a sweeping opinion about the importance of vigorous and unrestrained public debate. “If there is any fixed star in our constitutional constellation,” goes his most cited line, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”

To show the dangers of trying to control public opinion, Jackson cited the “fast failing efforts of our present totalitarian enemies.” He saw visions of future catastrophe. “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters,” he wrote. “Compulsory unification of opinion achieves only the unanimity of the graveyard.” No one thought West Virginians would be killing disobedient schoolchildren, but Jackson wanted the First Amendment to stamp out autocracy as soon as it appeared.

He made sure of that by interpreting the text of the First Amendment abstractly. His opinion contains little discussion of “speech.” Instead it dwells on the value of a “free mind”—a “sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.” Jackson concluded that the free speech clause, which protected a person’s “right to speak his own mind,” also made it unconstitutional for the state to “compel him to utter what it is not in his mind.”

Thirty years later Jehovah’s Witnesses were back before the Court. This time a married couple from New Hampshire was challenging a law that had made them put a license plate on their car with the state’s motto, “Live Free or Die.” In Wooley v. Maynard, the Court sided with the husband and wife. It cited Barnette to explain that the First Amendment protected “both the right to speak freely and the right to refrain from speaking at all.” That broad pronouncement, together with Jackson’s eloquent warnings in Barnette, established the compelled speech doctrine.

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At the heart of those two decisions was the conviction that a thriving democracy must let people debate, and abstain. The state had to earn, not force, the support of its citizens. But when the Court in Wooley said there was a right to “refrain from speaking,” it wasn’t saying that the government could never make people talk. Public schools make students write papers; the state makes us file tax returns; the court can compel you to testify.1 The First Amendment is no shield to those commands, because the “speech” it protects is both broader and narrower than the words we speak. By and large, the clause doesn’t let you libel, threaten, insider trade, or sexually harass, yet it protects dancing, painting, and burning flags.

When Barnette and Wooley were decided, the Court likely had an even more limited idea of what the First Amendment covered than it does today. Its representative free speech cases during the early twentieth century had involved mostly newspaper articles, rallies, and leaflets—in other words, speech by individuals on public issues. In Barnette and Wooley, the Court had pulled a new move by deciding that states couldn’t make people speak, but in other ways the cases were clear-cut. Their plaintiffs hadn’t been forced to say just anything; they’d been made to declare patriotic loyalty.  

Over the past half-century, though, the First Amendment has been stretched by different groups who saw the same opportunity: to protect their interests by asking courts to use an increasingly expansive definition of speech. Businesses that want to avoid regulation have contributed to the cause. By convincing judges to see even ordinary commercial activity, like ads, as protected expression, the scholar Amanda Shanor has written, corporations have transformed the First Amendment from a “mainstay of political liberty” into a “powerful deregulatory engine.”2

Alongside companies have been Christian conservatives. The Supreme Court dealt them a blow in 1990 by deciding, in Employment Division v. Smith, that the First Amendment’s free exercise clause didn’t exempt believers from laws that apply to everyone. Smith was an obstacle to free exercise claims, but religious activists could still bring challenges under the free speech clause. They grasped the same strategy as businesses: asking courts to classify more of what they do as protected speech, in this case to avoid laws that would make them violate their convictions.

ADF has led that charge. The group calls itself “the world’s largest legal organization committed to protecting religious freedom, free speech, the sanctity of life, parental rights, and God’s design for marriage and family.” Its list of accomplishments over the past thirty years reads like a recent history of social conservatism. It has asked the Supreme Court to make gay sex illegal, drafted bills to keep transgender people out of public bathrooms, and helped Mississippi write the antiabortion law that the Court upheld last year when it overturned Roe v. Wade. In 2003 ADF’s former president and CEO, Alan Sears, cowrote a book called The Homosexual Agenda that is full of lines like this: “The effort of homosexual activists to convince Americans to tolerate (i.e., ‘affirm’) homosexual behavior tramples religious freedom and leaves a trail of broken bodies in the dust.” In a later book, Sears and his coauthor Craig Osten accused the American Civil Liberties Union of waging a “war on American values.” He saw his organization as the ACLU’s right-wing mirror.

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The two organizations went head-to-head in Masterpiece Cakeshop. ADF represented the baker, who claimed a First Amendment right not to make cakes for gay weddings. Its lawyers made two arguments. One was based in the baker’s religious liberty. The other, rooted in the compelled speech doctrine, was that he couldn’t be forced to create “speech”—a wedding cake—if he disagreed with its message. The Supreme Court sided with the baker for a third reason. It found that the members of Colorado’s civil rights commission had been hostile to his faith.

ADF won the case, if not the argument. But it continued to push the compelled speech doctrine in lower courts, arguing that activities like baking cakes and plugging information into a webpage count as expression deserving of strong First Amendment protection. The group has perfected a tactic: by turning discriminators into creatives and visionaries, it makes the laws enforced against them seem despotic.

A few years back, ADF took this approach in a case about a Christian professor in Ohio. Nicholas Meriwether had refused to address a transgender student by the title and pronouns she preferred. He claimed that addressing her as “Ms.” or “her” contradicted his belief that gender was given by God at birth. The university tried to compromise with him, proposing that he could use gender-neutral language for the entire class, but he insisted on calling only the transgender student by her last name while referring to everyone else by their pronouns. The school found that he had created a hostile learning environment and warned him to stop.

Instead, with ADF’s help, Meriwether sued the university for, among other things, infringing on his freedom of speech. One of his arguments was that the school had violated the compelled speech doctrine. To support that claim, ADF relied on Jackson’s line in Barnette that “no official, high or petty, can prescribe what shall be orthodox.” It accused the university of enforcing, as “orthodoxy,” the view that gender identity is more expansive than the sex that people are assigned at birth. In one brief, ADF characterized the school’s antidiscrimination policy this way: “speak the University’s gender orthodoxy or be punished.”

The claim was a stretch. It’s true that the First Amendment protects even vile, offensive language. But there are special rules that apply to public employees while they are working, which give the government room to control how services are provided. Courts have disagreed about how to apply these rules to professors, so as not to restrict their academic freedom. Even so, Meriwether had to prove that refusing to use his student’s pronouns involved a matter of “public concern” and that his interest in doing so outweighed the university’s interest in protecting trans students. More damaging, what Meriwether claimed to be “speech” in this case—the different treatment of a student because of her gender—was arguably just discriminatory conduct, which the First Amendment doesn’t protect. (The scholar Caroline Mala Corbin lays out some of these points in her helpful article about why misgendering in public schools isn’t constitutionally protected.3)

For some of these reasons and others, the trial court dismissed the professor’s claim. But in the previous years, Donald Trump had appointed six judges to the federal court that hears appeals from Ohio. When ADF challenged the trial court’s decision, its case came before a panel of three judges, two of whom had been hand-selected by a man famous for equating liberal priorities with “woke” ideology and then attacking them as oppressive. “Our ancestors crushed fascism,” Trump told a crowd of supporters in 2021, “and now we will defeat woke radicalism.” 

The judges sided with the professor, in a decision that limited the power of universities to keep harassment out of the classroom. As the court saw it, by insisting on not calling a trans woman “her,” Meriwether had advanced a meaningful idea and expressed a viewpoint on the “contentious” issue of whether one’s sex can be changed. This entitled him, even as a government employee, to First Amendment protection. By extension, the court saw the school’s enforcement of its antidiscrimination policy against Meriwether as a ruthless overreach. At oral argument Judge Amul Thapar compared the university’s actions with a hypothetical policy requiring a Jewish professor to call his student “my Führer.” In his opinion for the court, he likened it to making a Soviet émigré call his students “comrades.” He warned about the university’s “alarming power to compel ideological conformity” through “laws that cast a pall of orthodoxy over the classroom,” and chided that anti-discrimination policies could not be used to transform colleges into “enclaves of totalitarianism.”

Other judges have followed suit. In 2019 another Trump appointee, Judge David Stras, who sits on a federal appeals court in Minnesota, sided with ADF in Telescope Media Group v. Lucero. In his decision, he held that the state could not enforce its human rights law against Christian wedding videographers who refused to serve gay couples. While a dissenting judge saw the plaintiffs as owners of a discriminatory business, Stras saw them as artists “expressing their own views about the sanctity of marriage.” At oral argument an ADF lawyer compared them to Steven Spielberg.

Stras talked about his decision in a Federalist Society speech that was published last year as “What My Grandparents’ Experiences in the Holocaust Taught Me About the First Amendment.” At the end he cites Telescope to imply that he, like his grandfather who survived the Holocaust, had stood up against an oppressive regime—in his case, the enforcement of a human rights law to make sure that gay people have equal access to wedding photographers. Like Thapar’s hypotheticals and Gorsuch’s questions at oral argument in December, this comparison is revealing. To convince judges that its clients are victims, ADF invokes a specific idea of oppression. It inspires courts to battle old, dead, or faraway enemies—the specters of German fascism and Soviet, Chinese, and Vietnamese communism. Picking on tired caricatures of totalitarianism, the judges get to see themselves as protectors of an embattled vision of American freedom, even as they strip rights from people who have been harassed and demeaned.

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Colorado’s public accommodations law, like similar ones around the country, obligates businesses that are open to the public to serve customers equally, no matter their identity. Lorie Smith, of 303 Creative, anticipates that Colorado will use that law to make her company sell gay couples the same websites she wants to make for straight ones. She says this will unconstitutionally compel her to “speak” against her conscience. Yet it’s hard to pin down what Smith thinks her company is being forced to say, because it has made no wedding websites yet. In fact, the entire conflict seems engineered to pick up where Masterpiece Cakeshop left off. While that case required ADF to argue that baked goods were “speech,” 303 Creative must have looked like the perfect client because its products are made of words.

But oral argument showed the extremity of ADF’s position. Even if the site 303 Creative designs for a straight couple includes just their names and pictures, ADF argued that the company couldn’t be forced to create the same one for a gay couple. In other words, it claimed that the Constitution protects 303 Creative from typing, “Jim and John are getting married,” and plugging in a jpeg.

To convince the Court that this deserves constitutional protection, ADF made the same move it used in lower courts: depicting 303 Creative not as a business but as a renegade. The group conflated the company with the woman who runs it and portrayed its products as artistic expressions of what she “believes is the beauty of God’s design for marriage.” It’s worth noting the strangeness of this business model, which supposes that any couple would want a Coloradan stranger to convey her personal views on their wedding website. But characterizing 303 Creative’s commodities as Lorie Smith’s art makes it easier for ADF to sell Colorado’s law as an autocratic decree. “Colorado asks this Court for the power to drive views like Ms. Smith’s from the public square,” ADF’s lawyer argued to the justices. “Compelled speech crushes the speaker’s conscience, and it is the tool of authoritarianism.”

Beneath this bluster, ADF’s arguments aren’t winning ones. On some versions of the facts, 303 Creative has no rights at all, since selling a basic, informational wedding website is less speech than it is a business transaction, which the First Amendment doesn’t protect. (A hired typist doesn’t express herself through the keys she taps.) If Lorie Smith plans to fill her sites with unique odes to God and heterosexual love, she has a stronger case, but there’s arguably still no compelled speech because Colorado won’t tell her what to write. Its law just requires that she sell the same sites, verses or not, to gay and straight customers alike. (David Cole lays this out clearly in a December opinion piece for the New York Times.) More to the point, the Court shouldn’t upend a longstanding tradition of protecting minorities on the basis of a prediction about which kind of product Smith will offer.

ADF’s lawyers see themselves as freedom fighters, but what they’re really fighting is run-of-the-mill democracy. The people of Colorado voted to elect legislators, who, in 2008, amended the state’s decades-old public accommodations law to prevent discrimination based on sexual orientation. This is what the law says:

It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.

Now a right-wing legal organization is asking a right-wing Supreme Court to block this law so that a business can avoid making websites in the future, for the sake of staving off hypothetical tyranny. The whole thing is phantasmic, but real, too. Siding with ADF would undermine the rights of millions, to skirt a threat that belongs to conservative fantasy.

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