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Gorsuch Wrote The Opinion Kennedy Should Have To Bolster The First Amendment

Instead of sidestepping the free speech issue like Kennedy did in Masterpiece, Gorsuch secured a solid win for the First Amendment.


Sometimes the student becomes the master. Supreme Court Justice Neil Gorsuch is a perfect example. His majority opinion in 303 Creative v. Elenis, issued on the last day of the court’s term this year, fills in the gaps in decisions regarding same-sex marriage written by his former boss, Justice Anthony Kennedy.  

In writing for the 6-3 majority, Gorsuch explained why Lorie Smith, an evangelical Christian website designer from Denver with a traditional view of marriage, should not be compelled to create a wedding website for a same-sex ceremony.  

The state of Colorado, he wrote, was using its Colorado Anti-Discrimination Act (CADA) to try to compel Smith to endorse same-sex marriages. Such “compelled speech,” he explained, is inconsistent with the Constitution. And “when a state public accommodations law and the Constitution collide, there can be no question which must prevail.”  

Many Christians will be pleased by Gorsuch’s unequivocal statement. The Trump-appointed justice has been viewed by some with suspicion since 2020, when he infamously authored the court’s majority opinion in Bostock v. Clayton County. His opinion radically expanded Title VII’s prohibition against discrimination on the basis of sex to include sexual orientation and gender identity, a decision guaranteed to divide Americans who take different views on this sensitive topic. He noted that the objecting employers did not raise any defenses based on the First Amendment’s free exercise guarantee with the court and added, “We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society.”  

Gorsuch’s 303 Creative v. Elenis opinion should redeem him in the eyes of some of his critics. And, significantly, it will clear up some of the confusion created in 2015 by the Supreme Court’s recognition of a right to same-sex marriage in Obergefell v. Hodges, whose majority opinion was written by Justice Kennedy, for whom Gorsuch had been a law clerk.  

At the time, Kennedy stressed that “the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” Whether such protection should be defined broadly was left for another day.  

Three years later, questions about the scope of such “proper protection” were raised with the court in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Kennedy, again writing the court’s majority opinion, ruled in favor of Jack Phillips, a Colorado cake artist who refused to create custom wedding cakes for same-sex weddings. But rather than address the constitutional issues head-on, Kennedy side-stepped them, grounding his opinion in the extreme hostility of the state’s civil rights commissioners to Phillips’ Christian beliefs, leaving the real issue of compelled speech up for debate.

Now, unlike Kennedy, Gorsuch has stepped into the breach, affirming that the Constitution’s free speech guarantee prevents the government from demanding ideological conformity in support of same-sex marriage.  

“We do not question the vital role public accommodations laws play in realizing the civil rights of all Americans,” observed Gorsuch. “At the same time, this Court has also recognized that no public accommodations law is immune from the demands of the Constitution.”  

Just as Lorie Smith diligently brought her petition all the way to the Supreme Court, employers with traditional Christian views on the nature of the human person will soon be asking for the court’s protection to operate consistent with their beliefs. And it’s a comfort to know that Gorsuch, along with a majority of his colleagues, is ready to respect their requests. 

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