303 Creative Is not a Win for Free Speech and Religious Liberty
Guest Commentary by Elizabeth Backstrom
303 Creative LLC v. Elenis is an egregious attack on LGBTQ rights and a dangerous expansion of so-called religious liberty that will allow a de facto Jim Crow to flourish, if taken to extreme.
In addition to that, it’s an embarrassing addition to free speech law.
The expansion of the concept of speech to include everything from donating money to wearing a shirt to burning a flag is weakening enforcement of the First Amendment. If everything is speech, nothing is speech.
Ephemeral, diffuse concepts are extremely difficult to define, defend and protect — which is one reason so many people have a problem with LGBTQ rights in the first place. A fundamentalist view of any issue does not permit concept creep, nuance or expansive ideas.
In the real world, I use a non-fundamentalist view of most things.
However, when trying to create and enforce law, I find it easier to use a more fundamentalist view, and when that doesn’t work, I fail to see a reason to make a law about it.
For example, why do we need laws telling people whether they can burn a flag or not, or what shirts or armbands they can wear?
We don’t, but these things offend various people who have tried to make them part of speech law. The U.S. government should not be in the business of enforcing such things. It should be in the business of enforcing campaign finance law, and the ludicrous idea that money is speech is a way to avoid enforcing effective campaign finance laws.
The idea that money is speech began with the Powell Memo in 1971 and culminated in Citizens United, decided in 2010. Today, money is effectively called speech.
After 303 Creative, art is speech. Goods and services distribution, apparently, is also speech, and the practicing of one’s religion.
Who defines art? If you’re a sandwich artist at Subway, is that speech? Can you refuse to make a sandwich for a gay person because they offend you? What about a hot dog vendor? A person on Etsy? A singer or celebrity? A calligrapher or an author? What is art, exactly?
The Supreme Court should not be in the business of deciding what art is, because this seems nearly as impossible to define as obscenity. They definitely should not be equating art as speech, because it isn’t, and using that as a justification to discriminate.
Any cognizant observer of history can see the ways this type of behavior has been enacted in society over the years. Mostly it’s been very bad for minority populations. Technically, the Creative decision does not give people the right to refuse goods and services, but of course, using this exception for free speech and artistic expression, this will be the case. We cannot and should not pretend that this is not the whole reason the plaintiff, Lorie Smith, brought the case in the first place — so that she would not have to make a wedding website for a gay couple.
This case sets a dangerous precedent for legalizing bigotry and revised Jim Crow.
Additionally, it weakens our existing protections for free speech by defining speech in an ever-widening pool of actions and items that are not actually speech.
I believe this is setting us up for a weakening of first amendment rights. The first amendment is a constant thorn in the side of people in power, and we should be extremely wary of anyone manipulating it for their own ends.
Those trying to claim this case is a victory for ‘religious freedom’ or small businesses are, of course, aware that it benefits a very small minority at the expense of the majority, and it will likely be abused.
This week’s decision in 303 Creative is a win for Christian nationalists and a loss for almost everyone else.
When you wrote, “We cannot and should not pretend that this is not the whole reason the plaintiff, Lorie Smith, brought the case in the first place — so that she would not have to make a wedding website for a gay couple.”, are you saying there was another reason she brought the case in addition to not wanting to make a wedding website for a gay couple?
A lot of the commentary around this case includes something to the effect of ‘don’t worry, this won’t create a precedent in which goods and services are denied to LGBT people on a noticeable scale.’ That part of the piece is speaking to that discourse – I believe that this will in fact happen and this was the plaintiff’s stated aim. So no, I don’t think she brought the case for another reason, I do think people are trying to say she did in order to quell fear about discrimination.
While I agree with you that the recent SCOTUS ruling on 303 Creative LLC v. Elenis will ultimately work to dilute free speech, I’m a bit confused by the statement, “However, when trying to create and enforce law, I find it easier to use a more fundamentalist view, and when that doesn’t work, I fail to see a reason to make a law about it.’
By “fundamentalist”, are you referring to the “5 Fundamentals” expressed by Lyman and Milton Stewart and embraced by many Protestants in 1910 that make a widely accepted litmus test for Christian Fundamentalism? These “5 Fundamentals” include: (1) inerrancy of the Bible, (2) the virgin birth of Y’shua (Jesus), (3) atonement for sin only through the death of Y’shua, (4) the literal bodily resurrection of Y’shua, and (5) historicity of the miracles of Y’shua. I suspect that when addressing this SCOTUS decision, we’re examining within a Protestant Christian context of Fundamentalism and not those of other faiths.
If this is the “fundamentalism” to which you refer, doesn’t this also open the door to judicial decisions forming aroud a core consisting of a singular type of religion as the beginning point of laws applicable to everyone? What may not “work” from this approach 1 year may be perceived to “work” a decade later in case of a mass Christian revival that dwarfs the 2nd Great Awakening. Then considering how most people in the United States had taken an expansively Consequentialist approach to ethics surounding religions in the last half of the 20th Century, how does this avoid a slippery slope into religious oppression? Wouldn’t this affirm the idea that the United Staes is essentially a “Judeo-Christian” nation instead of a pluralistic one that also accepts Hindus, Buddhists, Muslims, Jains, Sikhs, Shintoists, Daoists, and Shamans, none of whom subscribe to the “5 Fundamentals”, the same way as Protestants?
That may have been the wrong choice of words on my part, I don’t believe in a theocracy of any kind. Rather, I prefer to keep things as simple as possible.
I’m not exactly a small government person but it does seem that there are certain things the government doesn’t need to regulate.
When it comes to extremely subjective things like religious expression, artistic expression, definition of obscenity, ‘age appropriate,’ etc, I’m more of a libertarian. Two people on the street barely agree on these things so it seems futile for the government to regulate them.
What we can enforce are more objective things like the civil rights act, which imo this decision violates.
Its nearly impossible to define religious expression but if religious expression suddenly demands for example that you deny housing to minorities, there’s no need to define the limits of your religion, because you are now violating fair housing law. That’s what I meant by fundamentalist.
Edit: this is something I wanted to add in the essay but I forgot. I know a lot of people view this case as ‘a business has a right to refuse service.’
I think this plaintiff could have perfectly easily maintained her discretion as a business owner without this case. I too agree that businesses need to be able to, for example, remove aggressive and rude customers, protect their staff, or simply guard their own schedules from overwork.
People refuse business all the time – they’re busy, understaffed, the customer is rude, they’re just not taking new patients, whatever – and she doesn’t have to provide a reason, especially as a private business owner.
The fact that she went out of her way to make this point makes it clear to me that the case isn’t about free speech (she could have just not taken the client) but that she wanted specifically to refuse business on these grounds (both that the prospective customers are gay and she can do X if her religion allows it.)
The plaintiff wants to alter civil rights law for her specific benefit, with unclear parameters, under the guise of liberty. It seems incredibly dangerous.