303 Creative case: How Christians, drag queens are defending the First Amendment

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I'm mostly done with my legal career. In 2015, after more than 20 years of full-time litigation, I hung up my courtroom spurs and moved into the world of writing and thinking for a living. But every now and then, I reenter the fray. Last year, I wrote an amicus brief in a case called 303 Creative LLC v. Elenis, arguing that a wedding website designer had a First Amendment right not to speak. And last week the Supreme Court reached a decision in the case, ruling for the website designer and holding that the state of Colorado could not require her to design websites that, for example, celebrated same-sex weddings.

This case was not, as it has been widely described, about whether a website designer could refuse gay customers. That would be both illegal and immoral, and I would not participate in such a case. Indeed, the parties stipulated that the web designer, Lorie Smith, was "'willing to work with all people regardless of classifications such as race, creed, sexual orientation and gender,' and she 'will gladly create custom graphics and websites' for clients of any sexual orientation." She was simply not willing to design websites that contained messages that violated her religious beliefs.

The case was not about whether a business could refuse to provide goods or services but whether it could refuse to generate specific expressions with which it disagreed. Here the parties agreed that "all of the graphic and website design services Smith provides are 'expressive' " and that "websites and graphics Smith designs are 'original, customized' creations that 'contribute to the overall messages' her business conveys."

As a result, no one should think that the Supreme Court sanctioned, say, whites-only businesses or permitted a business owner to slam the door shut on gay and lesbian customers. Indeed, the majority opinion was written by the same justice, Neil Gorsuch, who wrote the majority opinion in Bostock v. Clayton County, which extended the reach of Title VII to protect gay and lesbian Americans from employment discrimination.

The 303 Creative case was instead about compelled speech. When could the government require a commercial provider of expressive services to say things she found objectionable? Could the government compel a portrait artist to paint a heroic picture of a white supremacist? Could the government compel a speechwriter to pen an anti-gay screed on behalf of a right-wing politician?

In ruling for Smith, the court didn't set any new precedent. It was a straightforward application of decades of cases protecting citizens from compelled speech. But these clear precedents were clouded by the culture wars. When one passionately supports a community or a cause, there is a natural human inclination to want to protect your speech while suppressing your opponents' speech — or in this case, your opponents' right not to speak at all.

Make no mistake, this is a bipartisan phenomenon. As I've written before, parts of red America have engaged in wholesale acts of censorship designed to suppress speech about race, sexual orientation and gender identity that many conservative Americans find distasteful. In the run-up to the Supreme Court's decision in 303 Creative, two different federal courts, in Tennessee and Florida, struck down restrictions on drag performances, holding that the states' efforts to target drag shows violated the First Amendment.

Indeed, Florida has been a locus of unconstitutional culture warring. The administration of Gov. Ron DeSantis currently faces court injunctions against the governor's efforts to override private social media corporations' ability to moderate their own websites, regulate corporate diversity training and regulate university instruction regarding race.

A fundamental reality of American First Amendment law is that it is sustained and defended by outsiders, people who are typically unpopular in their own communities. Sometimes that lack of popularity is well earned and enduring. When American Nazis demanded to march through Skokie, Ill., for example, they deserved every drop of the public condemnation they received. But they still retained their constitutional right to speak.

But sometimes lonely stands look better over time. When two Jehovah's Witness sisters refused to say the Pledge of Allegiance in their public school classroom during World War II, they were decidedly unpopular. But their courage resulted in one of the most remarkable statements of constitutional principle in American history, from the Supreme Court's 1943 ruling in West Virginia State Board of Education v. Barnette: "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 politics, nationalism, religion or other matters of opinion, or force citizens to confess by word or act their faith therein."

The consequence is an odd legal reality, an artifact of our divided times. Christians and drag queens — in different jurisdictions and in different courts — are both protecting the First Amendment from the culture wars. They're both reaffirming a foundational principle of American liberal democracy: that even voices on the margins enjoy the same civil liberties as the powerful and the popular.

In his majority opinion, Gorsuch stated the case well. "In this case," he wrote, "Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance." The state does not possess such power. It must not possess such power. Otherwise the culture wars will consume the Constitution, and even our most basic rights to speak or not speak will depend on whether we can gain and keep political control. That is not the vision of American pluralism, and it is not the vision that will sustain a united, diverse American republic.