Year’s end is often the time to take stock of what’s been accomplished and what’s left to do. Most of us engage in this exercise personally and vocationally. For me and my colleagues at Alliance Defending Freedom, that means we’re assessing what’s ahead in terms of protecting life and First Amendment rights. These foundational freedoms saw some setbacks in 2022 but also generation-shaping victories. Here are five areas we’re watching as we head into 2023.
The biggest First Amendment story begins at the U.S. Supreme Court, which on Dec. 5 heard 303 Creative v. Elenis, the case of graphic artist Lorie Smith, who wants to create custom wedding websites. But a Colorado law — the same law used against Masterpiece Cakeshop owner Jack Phillips — requires Lorie to violate her faith and design websites celebrating same-sex weddings.
This case is critically important because it transcends websites and marriage. Colorado has conceded that Lorie serves clients regardless of sexual orientation, chooses her projects based on content, and creates websites expressing certain messages. As Justice Neil Gorsuch noted in oral argument, it’s about what the message is, not who requests it. Yet Colorado still demands that Lorie create speech promoting its view on marriage.
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If the government can do this, it can do the same to any of us — from forcing LGBT web designers to condemn same-sex marriage to forcing atheists to design church flyers. That violates the First Amendment, and it gives the government the power to silence and punish any of us who hold views officials dislike. That’s authoritarian and dangerous. There are cases similar to Lorie’s pending right now where artists face ruinous penalties and even jail time, and we’ll likely see the so-called Respect for Marriage Act used as a cudgel to punish Americans. Free speech is for everyone, and that freedom is on the line in Lorie’s case. We expect a result most likely this summer.
Colorado is not the only government mandating orthodoxy. Across America, citizens are being punished for holding the common-sense view that men and women are different.
The Biden administration, for example, has tried to redefine sex in Title IX and in the Affordable Care Act to mean gender identity. This forces female athletes to compete against men, medical professionals to perform dangerous procedures on minors, colleges to include men in women’s dorm rooms, and teachers and students to use pronouns inconsistent with a person’s sex. The goal is to punish dissent. When the law fails to recognize legitimate biological distinctions, that extreme agenda harms women, children, families and professionals.
Thankfully, many states and groups like mine have fought back, winning victories for athletes, teachers, and medical professionals. But the Biden administration will likely finalize its Title IX and ACA rules in 2023. That will likely trigger even more lawsuits in the coming year.
Gender-identity ideology is not only affecting athletes, doctors, and educators. It has threatened parents’ right to raise their children. Because many politicians think they know best, and that "parental rights" is just code for bigotry, some policies now require teachers to lie to parents if their children express discomfort with their biological sex at school.
But our legal system has long recognized the rights of parents — not the government — to raise their children. Hiding vital information to indoctrinate a radical agenda is not the answer. So, this past year, many organizations began filing lawsuits challenging these anti-parent policies. Parents must engage in these battles over our children’s hearts and minds so that individuals and families can flourish as we teach the next generation to recognize truth and take responsibility needed to serve and lead.
The First Amendment binds the state, not private individuals. But our freedoms can only flourish in a culture of free speech. Unfortunately, that culture is crumbling in academic institutions and corporate boardrooms.
When I spoke at Yale Law School in March with an atheist attorney about free speech, a student mob shouted down the moderator and tried to shut down the event. Our future leaders could not stand to even be in a room engaging with viewpoints they dislike. That doesn’t bode well for maintaining a diverse nation with a fully functioning justice system.
Meanwhile, we saw large corporations (sometimes together with government officials) silencing everyday Americans. The so-called Twitter files have revealed disturbing attempts to silence public discourse. Elsewhere, financial institutions imposed hate speech codes, declining transactions from those who hold views they want to silence.
Lawmakers began to push back on concentrated corporate power. Many are seeking solutions. Expect more of the same in 2023.
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The year’s biggest legal win was Dobbs v. Jackson Women’s Health Organization, in which the Supreme Court overturned Roe v. Wade and upheld a Mississippi law protecting the dignity of unborn children. ADF helped Mississippi to write and defend that law, but Dobbs produced fierce blowback against those advocating for life. It also revealed the extreme views of pro-abortion activists who seek to permit abortion through birth, a position that only nations like North Korea and China endorse.
For example, many pro-life groups were vandalized while local laws and officials threatened pro-life pregnancy centers — even though these groups merely provide material and emotional support to those experiencing unwanted pregnancies.
Those who support free speech, religious freedom, and life experienced significant victories and challenges in 2022. These challenges will surely continue. The charge for all of us in 2023 will be to continue to remain vigilant about protecting freedom, both for ourselves and those who disagree with us. Now more than ever, our country needs citizens courageous enough to do both. It is our republic — if we can keep it.