The Supreme Court of Appeal of the United States of America (“SCOTUS”) has recently handed down its judgment in the case of 303 Creative LLC v Elenis. This was a case that required the court to declare how a variety of rights, notably, the rights to freedom of expression and freedom of religion, should be balanced with a particular State’s (in this case Colorado’s) equality laws.
The case involved a website designer who works for herself and runs her own business, Ms Lorie Smith. Ms Smith had always provided her services to customers regardless of their race, creed, sex or sexual orientation – something which Colorado State admitted. What she has never done for anyone, was accept work that would require her to produce something that goes against her own views and beliefs. Thus, she has never accepted work from anyone that would require her to produce anything that encourages violence or degrades people, or that goes against her personal religious beliefs, for e.g. by promoting another religion or worldview such as Atheism. What she had a problem with, therefore, was not people (she gladly made custom websites for anyone), but being forced to produce work that conveys a message she did not believe in or support (irrespective of who asked for it).
Ms Smith approached the courts, because she wanted to grow her business: She wanted to start offering to design wedding websites for couples seeking websites for their weddings. She wanted to design these wedding websites with text, graphic arts and videos that share and celebrate the details of that particular couple’s love story. However, before she took this plunge, she wanted to make sure that the State she lives in – Colorado – would not force her to accept jobs that go against her own views and beliefs.
The entire case centred around how the American Constitution’s First Amendment and the Colorado Anti-Discrimination Act (“CADA”) applied to, and interacted with one another, in Ms Smith’s particular scenario.
The First Amendment states that: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
What we see, therefore, is that the First Amendment does a number of things simultaneously. Amongst others, it says that:
(i) The Government cannot endorse any religion. (Known as “the Establishment Clause”, this clause requires separation between the Church and State, demanding that the American government be religiously neutral (i.e. it cannot endorse a specific religion)).
(ii) Freedom of religion is protected. (Known as “the Free Exercise Clause”, this clause protects the ability to hold religious beliefs of all kinds and then to live out those beliefs in daily – including, public – life.)
(iii) Freedom of expression is protected. (Known as “the Free Speech Clause”, this clause protects expression (which is wider than just speech and includes expressive acts)).
Note: SCOTUS has previously said that these three clauses, all found in the same sentence in the same amendment of the American Constitution, should be interpreted as having a complementary purpose and not as being at war with each other, which would create a de facto hierarchy where one clause prevails over the others.
CADA prohibits businesses that do business with the public, from denying the full and equal enjoyment of that business’ goods or services to anyone because of, for example, a customer’s race, creed, disability, sexual orientation etc. In terms of CADA, either a Colorado state official or a private person can institute a case of unfair discrimination against a business. Should a business be found guilty of unfair discrimination, they can be ordered to pay a fine etc.
Creative work as Free Speech:
The Court said that Ms Smith’s design services express and communicate ideas and are a form of expression. It does not matter that she offers them for sale, speakers do not lose the Free Speech Clause’s protection, because they engage in business to disseminate their speech. Therefore, Ms Smith’s design services are protected by the Free Speech Clause.
CADA would compel anyone who speaks for pay (for e.g. artists) to accept all work on a topic, no matter the message, if that topic was somehow connected to a protected trait. If they did not, they would face State sanctions.
The Court said that this was a limitation of the Free Speech Clause – one that could not be allowed. It also pointed out that equality laws have a tendency to grow and expand: they normally start off prohibiting unfair discrimination by businesses such as hotels or restaurants, but they become too big and wide when they start to be used to force speech. Colorado could, therefore, not use CADA to deny Ms Smith the right to decide the content of her own messages.
In this specific case, SCOTUS emphasised that the right to freedom of expression belongs to everyone, not just those whose motives the State happens to find worthy. Protecting free speech means that everyone will, at some point or another, come across ideas that they do not like, or even find hurtful. The solution is tolerance, true tolerance – which makes space for different and opposing views. Importantly, SCOTUS pointed out that the country that the First Amendment imagines is rich and complex where everyone is free to think and speak as they wish and not as the State demands.
Although foreign cases do not have any binding effect on South African courts, they can carry persuasive value and are nevertheless interesting and important, both from a comparative law point of view and in picking up on international trends in the area of religious freedom law which – at times – spill over into our local context. What makes this particular case interesting, is the similarities between CADA and South Africa’s Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (commonly known as either “PEPUDA” or “the Equality Act”.).
When considering our own anti-discrimination and hate speech laws, we would be wise to heed 303 Creative LLC v Elenis’s clarion call to protect freedom of expression and freedom of religion.
Freedom of Religion South Africa (FOR SA) is dedicated to protecting and preserving the freedoms and rights that the South African Constitution has granted to the faith community. If you have found this helpful, please consider supporting the work of FOR SA to protect our constitutional right to enjoy the freedom of religion by: