The opinion of Gorsuch J for the US Supreme Court in 303 Creative LLC v Elenis 600 US __ (2023) (Opinion (pdf) | Justia) has been widely welcomed on the US political right as a victory religious rights and just as broadly deplored on the US political left as a defeat for LGBTQ+ rights. Many on both sides agree, however, that – either way – it is an important defence of free speech. I am sorry to say that it is nothing of the sort. It is a stalking horse for an approach that will have pernicious consequences for the First Amendment.
Gorsuch J for the Court (Roberts CJ, and Thomas, Alito, Kavanaugh and Barrett JJ concurring) held that the First Amendment prohibits Colorado from forcing the appellant, a designer who intended to produce customized and tailored wedding websites, to create expressive designs conveying messages with which she disagrees, such as for for same-sex marriage. He began his analysis with a paean to the First Amendment, drawn from a century of Supreme Court authority (citations omitted):
The framers designed the Free Speech Clause of the First Amendment to protect the “freedom to think as you will and to speak as you think.”