On June 30, the Supreme Court ruled that Colorado can’t use its public-accommodations law to compel graphic artist Lorie Smith to speak messages that contradict her beliefs. Specifically, the state wanted to require her to create websites for same-sex weddings. In a 6-3 opinion by Justice Neil Gorsuch, the court resoundingly reaffirmed that free speech is for everyone: “A commitment to speech for only some messages and some persons is no commitment at all.” And, as the opinion states, our commitment to free speech doesn’t allow “a government to coerce an individual to speak contrary to her beliefs on a significant issue of personal conviction, all in order to eliminate ideas that differ from its own.”
The Supreme Court’s ruling in the 303 Creative decision will protect Americans in all walks of life, but especially those who create expressive products or services celebrating weddings. Even though the Supreme Court ruled for cake artist Jack Phillips five years ago in Masterpiece Cakeshop v. Colorado Civil Rights Commission, artists around the country continue to face the threat of government compulsion. Some have won in court, like Telescope Media Group in Minnesota, while others faced losses, like Elane Photography in New Mexico. Others are still in court, like photographers Emilee Carpenter in New York and Chelsey Nelson in Kentucky, and even Jack Phillips himself, who is still facing a complaint arising from an activist attorney who submitted a cake request for the purpose of starting more trouble for Jack. Now, thanks to God’s faithfulness and the courage of people like these, the Supreme Court firmly rejected this kind of compelled speech.
But there’s another area, outside of wedding businesses, where officials are seeking to compel speech—gender pronouns. And the 303 Creative decision will likely play an important role in this issue as well. Some authorities, like New York City, require almost all businesses to use the pronouns specified by employees and customers. Schools and universities across the country are trying to force students, professors, and teachers to participate in the “social transition” of students by using names and pronouns to validate that student’s “gender identity.” In other words, the government is trying to make people call young boys “she” and young girls “he.”
Several aspects of the Supreme Court’s reasoning in 303 Creative suggest it may view these efforts as unconstitutional, whether in the marketplace or the academy. As far as attempts to use public accommodations laws go, the court was clear: “no public accommodations law is immune from the demands of the Constitution.” And the court rejected the idea that the opinion’s compelled speech principles apply to any particular segment of speakers. Discussing the classic school speech case of West Virginia Board of Education v. Barnette, the court instead concluded, “the First Amendment extends to all persons engaged in expressive conduct.”
Some of the court’s other statements will likely apply to compelled pronouns as well. For example, it explained that “the First Amendment does not tolerate” attempts “to force an individual to ‘utter what is not in [her] mind’ about a question of political and religious significance.” There are few issues today of more “political and religious significance” than the question of what makes us male or female, and forcing someone to use pronouns that are inconsistent with a person’s sex is exactly the kind of compulsion 303 Creative forbids.
Pronoun mandate advocates will likely raise claims that declining to use certain pronouns is harmful. The available data doesn’t support these claims. But on top of that, the Supreme Court says this is not a reason to compel speech.
As Christians, we must always be loving and judicious about how we use our liberty. But it’s grown clear that Christian love demands that no one affirm or promote a “social transition.” This is not a neutral approach. It’s an active intervention in a child’s psychological development. And using pronouns to validate the idea that a young boy is a “she,” or vice-versa, is promoting this active intervention. Our duty as Christians is to lovingly decline. And, thanks to 303 Creative, it looks like the Supreme Court will stand for our constitutional right to do so.