May 2nd, 2023
The First Amendment prohibits the government from making any “law . . . abridging the freedom of speech . . . .” U.S. Const. amend I. The free-speech clause also prohibits the government from compelling speech. In other words, the government cannot tell you what to say. Rumsfeld v. Foundation for Academic and Institutional Rights, et al., 547 U.S. 47 (2006).
The compelled-speech doctrine has a long history in Supreme Court caselaw. In 1940, the Supreme Court upheld the authority of states to compel public school students to salute the flag and recite the pledge. Minersville School District v. Gobitis, 310 U.S. 586 (1940). Three years later in West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), the Court overruled the Gobitis decision. The justices on the two Courts were the same, except Robert Jackson and Wiley Rutledge replaced Charles Evans Hughes and James McReynolds. In his opinion for the Court, Justice Jackson said, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in matters of politics, nationalism, religion, or other matters of opinion[,] or force citizens to confess by word their faith therein.” Is this star still “fixed” in our constitutional constellation?
This doctrine continued to develop outside of the classroom. In 1977, the Supreme Court held that a state could not punish you for covering up a state motto on your license plate. Wooley v. Maynard, 430 U.S. 705 (1977). Chief Justice Burger wrote, “The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’” Nor can the government require a private organization to include in its parade groups whose messages infringe on the private group’s messages. Hurley v. Irish-American, Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995). “To do so would infringe on the private group’s autonomy and right to disseminate its own messages.” David L. Hudson, Compelled Speech, THE FIRST AMENDMENT ENCYLOPEDIA https://www.mtsu.edu/first-amendment/article/933/ compelled-speech
Can the government compel speech through public-accommodation laws?
The group wishing to join the parade in Hurley relied on Massachusetts’s public-accommodation law to compel parade organizers to allow their participation. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, Jack Phillips, owner of Masterpiece Cakeshop, refused to bake a wedding cake for a same-sex couple. Doing so, would violate his religious beliefs. The couple filed a complaint with the Colorado Civil Rights Commission. The Commission concluded that Phillips violated Colorado’s public-accommodation law, and Colorado courts affirmed the Commission. Phillips appealed to the Supreme Court. The Court held that the Commission’s conduct in evaluating Phillips’s reasons for not making the cake for the same-sex couple violated the Free Exercise Clause. Colorado failed to apply its law in a neutral manner with regard to religion. In Masterpiece Cakeshop, the Court did not answer the free-exercise or free-speech questions. On the same day the Supreme Court issued its opinion, a potential customer asked Masterpiece Cakeshop to bake a pink cake with blue frosting to celebrate her transition from male to female. Not surprisingly, Phillips refused citing his religious beliefs. This led to a return engagement for Phillips with the Colorado Civil Rights Commission and Colorado courts where he lost again. Phillips plans to appeal. The Supreme Court did not answer the questions at the core of the case, i.e., can the government compel speech or action in violation of one’s religious beliefs? Absent some judicial legerdemain, the Court will have to answer these questions this term in 303 Creative, LLC, v. Colorado Civil Rights Commission.
Lorie Smith, the owner of 303 Creative, LLC, designs websites. She does not design websites, however, promoting messages that are inconsistent with her religious beliefs. Seeing how poorly Jack Phillips fared before the Colorado Civil Rights Commission and Colorado courts, Smith sued to prevent the Commission from enforcing Colorado’s public-accommodation law against her.
Ms. Smith “creates original, online content that is consistent with her faith.” Petition for Writ of Certiorari at p. i. (https://www.supremecourt.gov/). The parties agree that Ms. Smith provides services for all people regardless of classifications such as race, creed, sexual orientation, and gender. 303 Creative LLC and Smith v. Elenis et al., Docket 19-1413 at p. 13 (10 th Cir. 2021). Ms. Smith does refuse, however, to design websites for same-sex weddings and other events that are contrary to her religious beliefs.
The Commission prohibited Ms. Smith from putting a message on her website stating her religious objection to designing certain websites that conflict with her religious beliefs. Colorado would not allow her to post such a statement because the state viewed this as an act of discrimination. The state also told Ms. Smith she had to design websites for all comers regardless of her religious beliefs. En route to the Supreme Court, Ms. Smith had to stop at the Tenth Circuit Court of Appeals. The Tenth Circuit found that although Smith had a First Amendment right, the state’s interest in combating discrimination substantially outweighed Smith’s First Amendment right against compelled speech. On December 5, 2023, the Supreme Court heard oral argument in 303 Creative, LLC.
Other First Amendment compelled-speech and free-exercise cases
The resolution of 303 Creative, LLC, will likely save Jack Phillips a return trip to the Supreme Court. And there are other cases making their way to the Supreme Court. One example is Yeshiva University v. YU Pride Alliance. A student group at Yeshiva University, YU Pride Alliance, applied for recognition as an official student group. YU disagrees with the university’s view that same-sex relationships are contrary to the Torah-inspired values of the university. The university concluded that recognizing this group would have results that are contrary to the Torah and denied the application. The student group then sued the university in New York state court arguing that Yeshiva University violated the New York City Human Rights Law. The university sought a stay pending appeal, but the state courts denied this request. The university then sought emergency relief in the Supreme Court of the United States. The Court denied relief based on its opinion that the university still had options for relief in the state courts. Justices, Alito, Thomas, Gorsuch, and Barrett, dissented from the denial of relief.
Finally, Klein, et vir. v. Oregon Bureau of Labor and Industries awaits the Court’s decision on the Kleins’ petition for certiorari. The Kliens, like Jack Phillips, were custom wedding-cake bakers in Oregon. Oregon, too, has a public accommodations law. The Kliens designed and created only custom cakes; there were no off-the-shelf cakes. The Kliens made custom cakes for anyone, regardless of a customer’s sexual orientation, and had made cakes for the Complainants. Like Phillips and Smith, the Kleins would not use their artistic talents to make a wedding cake for a same-sex marriage. The Board did as the Colorado Commission has done and found the Kleins guilty of discrimination. Because Mr. Klein quoted scripture during the hearing, the Board imposed heightened damages of $135,000.00. The Kleins’ business did not survive.
The Supreme Court initially reversed and remanded the Kleins’ case in light of the Court’s Masterpiece Cakeshop decision. On remand, the Oregon courts agreed the board had treated the Kleins badly, but concluded any constitutional violation was manifest only in the damages. The Board then reviewed the case and imposed a $30,000.00 fine. As of the writing of this article, the Supreme Court has not taken action on the Kleins’ petition for certiorari.
Do these cases affect private employers?
Because these cases address government-compelled speech, it is not likely that these cases will have a direct effect on private employers. Although the applicable laws are different, an analysis of these cases might be helpful in analyzing religious discrimination claims under Title VII or similar state laws.
When the dust settles, it is likely that Justice Jackson’s “star [remains fixed] in our constitutional constellation.”
Mr. Conder is a Member of Rainey, Kizer, Reviere & Bell, P.L.C., and has been associated with the firm since receiving his Doctor of Jurisprudence, with honors, in 1992 from the University Of Tennessee College Of Law. He has significant experience in the areas of employment law (representing employers only), personal injury litigation, and federal civil rights litigation. He also has significant experience in appellate advocacy. Mr. Conder has represented a number of police departments and municipalities in 42 U.S.C. § 1983 litigation. Mr. Conder is a member of the firm’s Governmental Law Practice Group and the Employment Law Practice Group.