Can Colorado Tell Lorie Smith and 303 Creative What to Say?

That hasn’t been

Lorie Smith’s

experience. She owns 303 Creative, a Denver-area company that designs wedding websites. Her faith teaches that marriage mirrors Christ’s relationship with the church and “fulfills the complementary nature of God’s first institution.” The state defines her business as a public accommodation subject to the Colorado Anti-Discrimination Act, which requires her to serve customers regardless of sexual orientation.

Ms. Smith says in an interview that she’s happy to serve gay clients, but “I can’t create every message that is requested of me . . . no matter who does so.” She would also refuse to promote messages that contradict biblical truths, promote abortion or gambling, or demean people. She wouldn’t produce a website that includes the Westboro Baptist Church’s slogan “God hates f—” (the last word is an antigay slur) even if the prospective client claimed religious discrimination.

In 2016 she filed a lawsuit seeking to enjoin Colorado from requiring her to design websites for same-sex weddings. She lost in both district court and the 10th U.S. Circuit Court of Appeals. On Monday the high court will hear arguments in 303 Creative v. Elenis, which will decide whether Justice Kennedy’s reassurance in Obergefell meant anything.

Ms. Smith claimed in her lawsuit that the prospective application of the law would violate her rights to freedom of both religion and speech under the First Amendment. The high court elected to focus on the latter claim, and the state acknowledges that Ms. Smith’s services “are expressive in nature”—i.e., speech.

Restrictions on speech are subjected to “strict scrutiny”: The state has to show that a restriction on—or compulsion of—speech is “narrowly tailored” to achieve a “compelling interest” and is the “least restrictive means” of doing so.

The most relevant precedent, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995), pitted Massachusetts’ public-accommodation law against freedom of speech. In a decision by Justice

David Souter,

the court held unanimously that the state couldn’t force a parade organizer to include among the marchers a self-described gay and lesbian group. To do so would require “petitioners to alter the expressive content of their parade” and violate “the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message.”

Massachusetts’ public-accommodations law had a “venerable history,” Justice Souter wrote, but in this case it was applied in a “peculiar way” to declare “the sponsors’ speech itself to be the public accommodation.” Likewise in 303 Creative.

Colorado argues that this case is different because Ms. Smith runs a commercial business whereas the parade organizers in Hurley were an informal group of individuals. But Justice Souter pre-empted that argument by noting that the “fundamental First Amendment rule” is “enjoyed by business corporations generally and by ordinary people engaged in unsophisticated expression.”

The state also argues that what it seeks to regulate is Ms. Smith’s selling of her service, not the service itself, and that therefore the law governs conduct, not speech. That’s sophistry—akin to claiming a ban on a newspaper isn’t censorship because it merely regulates the sale of a good.

Colorado’s behavior is of a piece with how public-accommodation laws are “being twisted by state commissions to prohibit something they actually don’t,” says

Michael McConnell,

a Stanford law professor who served as a 10th Circuit judge from 2002 through 2009. The intent is to force objectors to affirm progressive orthodoxy about sex and sexual identity.

Ms. Smith’s case has occasioned the usual hysteria in left-wing media. “The worst-case scenario,” Slate’s Mark Joseph Stern writes, “is that the majority incinerates precedent upholding non-discrimination protections and establishes a new regime that subjects civil rights enforcement to strict First Amendment scrutiny.” Mr. Stern describes the case as heralding “a constitutional revolution led by Justices

Clarence Thomas

and

Neil Gorsuch.

” He doesn’t mention the shot Justice Souter fired more than a quarter-century ago.

Mr. Tomaino is an assistant editorial features editor at the Journal.