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TFL files brief in free speech Supreme Court case

On Monday, Dec. 5, the U.S. Supreme Court will hear arguments in 303 Creative LLC v. Elenis, to decide whether the government can force a Christian to speak against her beliefs about marriage or give up her chosen profession.

Colorado web designer Lorie Smith is fighting back against a Colorado law being used to force her to create websites that celebrate same-sex weddings. Applying the law in that way, Smith argues, violates not only her deeply held religious convictions, but also her fundamental free speech rights.

The FAMiLY Leader joined with pro-life organizations in Arizona and California in filing an amicus, or “friend of the court,” brief in Smith’s case, detailing how the U.S. Supreme Court’s 1995 Hurleydecision protected free speech in a similar scenario. The TFL brief, however, argues the reasons for protecting free speech are even stronger in Smith’s case.

“Indeed, Hurley confronted the precise question here: whether a public-accommodations law prohibiting sexual-orientation discrimination can compel a speaker to express a message the speaker finds objectionable. Hurley held that it cannot,” the brief states.

The brief continues: “Through wedding websites, Smith desires ‘to promote God’s design for marriage in a compelling way.’ For Smith, that ‘design for marriage’ is a ‘lifelong union of one man and one woman.’ Yet Colorado seeks to force Smith to design and create custom websites that ‘celebrate’ and ‘promote’ a view of marriage that violates Smith’s beliefs and conflicts with her desired message. Hurley established that such coercion violates the First Amendment.”

TFL’s Vice President and Chief Counsel Chuck Hurley (no relation to the 1995 Supreme Court decision) explains the case in simpler terms: “Colorado is violating Smith’s civil rights by forcing her to speak inconsistently with her sincerely held religious beliefs — the very core of who she is. This clearly violates the Constitution.

“Furthermore,” Hurley continues, “when Colorado uses the force of law to control what someone can or can’t say, it chooses which Americans have freedom and which ones don’t.”

The 1995 Hurley case surrounded an LGBTQ group appealing to “public accommodation” and “non-discrimination” laws to force its way into a parade that was hosted by Boston veterans. The veterans, however, argued that such laws should not coerce them into including messages they did not wish to convey, in essence, compelled speech.

The veterans eventually won their case, and the freedoms they protected were later enjoyed and exercised – ironically – by later LGBTQ parade organizers.

The FAMiLY Leader’s brief in Smith’s case explains: “Even when experiencing the sting of a ‘hurtful’ speech decision, those with foresight recognize that the alternative — government coercion — comes at too high a cost. For when the winds of change blow, the formerly aggrieved may find that their own conscience needs protection from those seeking to compel speech.

“Some had that foresight when this Court decided Hurley,” the brief continues. “Right after the opinion issued, a group of Gay and Lesbian libertarians warmly applauded the decision, noting: ‘True freedom means we respect the rights of others as much as our own rights.’ Unsurprisingly, an LGBT parade eventually found itself exercising the freedom that Hurley recognized by declining to allow a contingent supporting President Trump to join the parade. This serves as a reminder that the First Amendment’s protection against compelled expression is a right that protects us all.”


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