Jake Warner has had a great seat to ponder recent Supreme Court decisions on what government at different levels can and cannot enforce when it comes to free speech and freedom of religion. Often, the two overlap or intersect, says the senior counsel for the appellate team at the Alliance Defending Freedom. The organization was founded in 1993 by attorney Alan Sears, psychologist and author James Dobson, pastor D. James Kennedy, radio personality Larry Burkett and evangelist Bill Bright — all outspoken Christians. Based in Scottsdale, Arizona, the firm has now won 15 cases before the U.S. Supreme Court, including the recent 303 Creative decision.
The group’s focus has largely been defending the right of Christians to exercise and express their faith without government curtailment. But Warner points out that their victories defend everyone’s rights — including atheists’. The court recently ruled in favor of Lorie Smith, a graphic artist and web designer in Colorado who didn’t want to design web pages celebrating same-sex marriage, though she was not opposed to serving same-sex customers. “It’s always about the what, never the who,” says Warner.
In 303 Creative v. Elenis, the court ruled 6-3 that Smith can’t be forced into creative expression that contradicts her sincere beliefs. Experts say that ruling settles a question the court didn’t address in Masterpiece Cakeshop v. Colorado Civil Rights Commission in 2018. Instead of answering the free speech claim when cakemaker Jack Phillips declined to bake a wedding cake celebrating same-sex marriage, the court decided in his favor based on the “impermissible hostility” Colorado officials showed toward his religious beliefs.
Warner, 38, was on the Masterpiece Cakeshop legal team. He got his law degree at Regent School of Law in Virginia Beach, Virginia, in 2011 and joined Alliance Defending Freedom in 2017. Before that, he was a judicial law clerk to senior U.S. District Judge Malcolm J. Howard in the Eastern District of North Carolina. He was also previously in private practice as a criminal defense lawyer in state and federal courts in North Carolina.
Deseret asked him about the intersection of free speech and religious freedom and what those court decisions mean.
Deseret Magazine: What will the 303 Creative decision do?
Jake Warner: It was a big win for free speech. Lorie Smith wanted to expand her business to create custom websites promoting God’s design for marriage between a man and a woman. But she saw Colorado officials had prosecuted Jack Phillips all the way up to the U.S. Supreme Court, trying to force him to express messages that went against his faith. She wondered, could this happen to me? After talking with her pastor, she contacted ADF and we advised her that her rights were at risk. That put her in a difficult place. She could change her belief, curb her business or challenge an unjust law. She decided to advocate for the right of all Americans to say what they believe, without fear of government punishment. She lost her case at the trial court and again at the 10th Circuit Court of Appeals. But the Supreme Court declared that Colorado could not force her to express messages that go against her deepest belief. It doesn’t matter what you believe about marriage or any of life’s biggest issues. The government can’t force you to say things you don’t believe. This decision protects you if you are an atheist musician or a Muslim photographer or a Christian cake artist.
DM: How different was 303 Creative from Masterpiece Cakeshop?
JW: In that case, the court had the opportunity to answer the question it answered in 303 Creative, but instead found that Colorado had acted with impermissible hostility against Jack and his faith. That was evidenced by two things: Colorado officials had compared Jack and his faith to that of Nazis and slaveholders. More than that, a religious man had gone to three secular cake artists in Denver requesting a custom cake bearing Bible verses promoting a biblical view of marriage. All of them declined, citing their objection to that cake’s message. The religious man filed discrimination complaints against them. But instead of prosecuting them, the state said these artists had the right not to create custom cakes promoting messages that go against their beliefs. When the U.S. Supreme Court learned that, they said, “Look, Colorado, you are discriminating against Jack Phillips; you can’t deny him a freedom that you freely offer other cake artists who share different beliefs.”
The government can’t force you to say things you don’t believe. This decision protects you if you are an atheist musician or a Muslim photographer or a Christian cake artist.
DM: Where do freedom of religion and free speech meet?
JW: Jack’s case raised both a free exercise claim and a free speech claim. But there is plenty of overlap there because as in so many cases ADF litigates, the government is trying to force religious artists to convey speech that goes against their beliefs. At least when applied to compelled speech, they violate both the free speech clause and the free exercise clause of the First Amendment. We have always raised both arguments to defend the artists. It’s important to know that the Supreme Court decided only to hear our free speech question once 303 Creative got up there. Because the court ruled that Colorado officials could not force Lorie to create custom websites promoting messages that go against her faith under the free speech clause, it didn’t need to also say that conduct violated the free exercise clause.
DM: What’s next in this area?
JW: We are encouraging courts around the country to apply the decision in 303 Creative to protect other artists who are being coerced to say things they don’t believe. But past that, what we have seen in recent years is government trying to misuse the law to force people to say other kinds of things that go against their beliefs. In university settings oftentimes instructors will be coerced into using certain pronouns to describe students and other people against their beliefs. It’s likely that 303 Creative means that governments cannot misuse similar laws to coerce teachers and professors to say things that go against their beliefs. Whenever government tries to force speakers to say things they don’t believe, it’s likely that 303 Creative is going to come in and stand for the principle that governments can’t do that.
DM: Can other nongovernmental entities?
JW: Even with private action, sometimes there are laws that can help those who have religious concerns. For example, Title VII ensures employers must give their employees a reasonable accommodation if part of their work causes them to have concerns with their faith. They can request that their employer relieve them of certain responsibilities if they might conflict with their faith, and the employer has an obligation to try to reasonably accommodate those requests.
DM: What other issues are simmering?
JW: There are other cases in which the government is trying to restrict speech it opposes. For example, ADF represents a counselor in Washington state where state officials are trying to regulate conversations he has with clients. He helps people who are struggling with unwanted same-sex attraction. But the state has said counselors can’t have these conversations. ADF is dissenting, saying the government has no business being in the counseling chair. It should not dictate what conversations are happening between counselors and clients. We are asking the U.S. Supreme Court to weigh in on that case.
DM: Do the Christian and conservative viewpoints you represent work for others?
JW: Absolutely. Free speech is for everyone, so 303 Creative protects not only Lorie Smith, but for example a website designer who identifies as LGBT. The government cannot force that designer to create custom websites promoting views of marriage that go against their beliefs. It doesn’t matter what your viewpoint is. What’s critical to understand is that it doesn’t matter who you are, what your background is. These artists make decisions based on what they are asked to express through their custom speech. There’s been some misconception about that in the media, but they serve everyone. They just cannot express every message through their custom art — and the First Amendment protects them.
DM: Any last word?
JW: It doesn’t matter what you believe, the government should not be trying to force you to change your beliefs or to say things that go against that. Free speech is essential for a pluralistic and just society. The nations that protect free speech are, in general, more democratic, they have more economic freedom and they better protect the vulnerable. So when we look around the world, the nations that are most committed to freedom — and free speech in particular — are the vibrant nations that are protecting all people, including those who are most vulnerable among them.