Florida’s “Don’t Say Gay” bill is attracting lots of attention, and rightly so. As an example of the willingness of the anti-LGBTQ right to prevent any discussion of sexual orientation in schools, the Florida law can hardly be beat. It targets the most vulnerable with a law that is intentionally vague, all with the goal of scoring points in the culture war in the most slanderous way imaginable.
One thing you won’t hear the right saying is that “Don’t Say Gay” violates the First Amendment. And yet, when it comes to a carefully crafted Colorado law designed to protect LGBTQ people from businesses that wish to discriminate against them, that’s exactly the complaint the right levels.
Worse still, the Supreme Court will be weighing in on a case that promises to making anti-LGBTQ speech protected speech even in the context of nondiscrimination laws.
The Colorado case involves Lorie Smith, a website designer who is willing to provide services to LGBTQ people, but not for weddings. She wants to make that last part very, very clear by posting a message that it’s her company policy based on her religious convictions.
“She cannot create websites that promote messages contrary to her faith, such as messages that condone violence or promote sexual immorality, abortion or same-sex marriage,” Smith’s lawyers told the Court.
In defending the law, Colorado argues that Smith can make her views known in any public forum she wants. What she can’t do is proclaim that she will discriminate as a business.
“Prohibiting companies from displaying what would amount to ‘Straight Couples Only’ messages is permissible, because it restricts speech that proposes illegal activity and is therefore unprotected by the First Amendment,” Colorado Attorney General Philip Weiser told the Court in the filing as it considered taking the case.
Of course, that’s not the point of view from the lawyers representing Smith. “Colorado has weaponized its law to silence speech it disagrees with, to compel speech it approves of and to punish anyone who dares to dissent,” Kristen Waggoner, a lawyer with Alliance Defending Freedom, told The New York Times in a statement.
That’s a fine principle. Except for the right, it’s not really a principle at all.
Here’s a simple way to test it. Substitute “Florida” for “Colorado” in Waggoner’s statement. Does anyone for a second believe that Alliance Defending Freedom, Florida Gov. Ron DeSantis (R) or any of the other culture warriors piling on against LGBTQ issues would for a second condemn the “Don’t Say Gay” bill on First Amendment grounds?
Hardly. Alliance Defending Freedom is in fact one of the architects of the rash of anti-LGBTQ measures flooding state legislatures.
The fact is that the only speech the right wants to protect is its own. From its perspective, the First Amendment doesn’t extend past the church door. That’s why it’s so happy to censor not just teachers but books and libraries. The only speech that matters is its own.
Unfortunately, a majority of justices on the Supreme Court are likely to agree. They seem ready to believe that faith supersedes every other right, including the right not to be discriminated against.
The Colorado case will give the justices exactly the case they need to make their religious liberty argument the law of the land. When Anthony Kennedy was still on the Court, the justices punted on another case from Colorado, this one involving a baker who refused to make wedding cakes for same-sex couples.
That ruling, Masterpiece Cakeshop v. Colorado Civil Rights Commission, was narrow, reflecting Kennedy’s influence. There will be no such restraint next time around. And if there is a challenge to Florida’s “Don’t Say Gay” law, don’t expect the justices to apply the same standards as they will to the Colorado law.