A devout Christian opens a business designing customized webpages. She serves customers of all races, faiths, creeds, and sexual orientations, but she politely declines to design pages expressing messages that contradict her faith.
Her first customer is a Christian pastor who requests a webpage spreading the gospel. She happily creates that webpage. So far, so good, but then things get interesting.
Her second customer, a rabbi, requests a webpage aimed at convincing Jewish people to reject Christian missionizing. The website would seem at first glance to be similar to the pastor’s since both are meant to spread the customer’s religion. But on closer inspection, this second webpage would directly contradict her faith by explaining why Jews reject Jesus as the Messiah. She politely declines to create this webpage.
A third customer, a Muslim imam, asks her to draft a site promoting Islam’s belief that Jesus was not divine and calling on Christians to accept Muhammad as a prophet. Creating this site would also require her to express words that contradict her faith. Again, she politely passes.
Still so far, so good? Maybe. It depends on what happens on Dec. 5, 2022, when the Supreme Court hears the oral argument in 303 Creative v. Elenis. The question presented in this case is whether the First Amendment’s free speech clause prevents states from using public accommodation laws to force artists to speak messages with which they disagree.
We urge the court to recognize artists’ First Amendment right to refuse to articulate messages championed by the state. Far from imperiling religious minorities, this will protect their ability to express their convictions even when such views contradict those held by the majority.
The plaintiff in 303 Creative is Lorie Smith, a Colorado-based website designer who wishes to create wedding-related webpages. Lorie serves all customers without discriminating against anyone on the basis of identity. However, she is unwilling to create webpages that express messages that contradict her sincerely held religious beliefs. And one of Lori’s beliefs is that marriage by its nature is only between a man and a woman. For her, then, to create a webpage celebrating a same-sex wedding would be to express a message that contradicts her beliefs.
Lori’s conscience does not require or even allow her to discriminate. She does not object to and will gladly create custom websites for LGBT clients so long as those customers do not request her to design a webpage displaying messages contrary to her beliefs. Likewise, she would decline to create such a website for anyone, regardless of sexual orientation. Hence, her choice not to create webpages for same-sex weddings is based solely on the message she would be expressing, not on whether the customer is a member of a certain class.
Unfortunately, the Colorado Anti-Discrimination Act, or CADA, which prohibits businesses from discriminating on the basis of race, religion, sex, and sexual orientation, prohibits Lorie from politely declining to express messages that contradict her religious beliefs. Because CADA prohibits businesses from “indicating” that protected classes are unwelcome, and because Colorado wrongly casts Lori’s refusal to design websites that violate her beliefs as discrimination against a protected class, the state argues that the statute would even prevent her from publicly explaining why she would decline to create such artwork. Lorie preemptively challenged the law, arguing that it violates her freedom of speech by requiring her to express some messages and prohibiting her from expressing others.
The federal court of appeals in Colorado agreed with Lorie that CADA regulates “pure speech” and that it is not merely a regulation of “commercial conduct.” The court even acknowledged that CADA affects the core of the First Amendment’s free speech protections because it is designed to eliminate ideas that the state disapproves of. Disturbingly, despite those conclusions, the court still upheld Colorado’s statute.
Let’s be clear about what this case is not about. It is not about a right to exclude customers because of their sexual orientation. If Lorie refused to serve gay customers regardless of the message expressed by their proposed webpages, the legal issues would be different. This case is about whether an artist must promote messages she considers objectionable, not whether Colorado can prohibit discrimination on the basis of protected characteristics. If the Supreme Court holds that the state cannot force Lori to express its preferred message, no one will be able to use her case to justify discrimination on the basis of sexual orientation, race, or religion.
The appellate court did not care that Lorie objected to the message rather than the customer. It narrowly focused on the effects of her actions rather than her motivations or the harms that she would suffer if she were forced to speak a message that violated her beliefs.
According to the appellate court, because artists design unique goods, it is impossible for the spurned customer to obtain an adequate replacement elsewhere. It reasoned that the customer can obtain a similar product but is forever excluded from obtaining that specific artist’s work. Therefore, the court concluded, if an artist declines to create artwork, she inflicts serious harm on a potential customer, and the state is entitled to go to great lengths, including restricting free speech, to prevent such injury.
As the dissenting judge correctly pointed out, this would effectively strip all artists of their freedom of speech and render them mouthpieces for the state. While supporters of CADA argue that it wouldn’t apply to artists who only create artwork for charitable purposes, it’s not clear that the law really would exempt noncommercial artists. Even if it did, we hope that America never becomes a country in which people of faith are excluded by law from participating in the marketplace.
We support a robust interpretation of the First Amendment that permits artists the freedom to control the message that they convey, even though such a decision would allow artists to refuse to produce art containing Jewish or Islamic messages. A Jewish artist may decline to paint Muhammad ascending to Heaven, a Muslim artist may refuse to portray Abraham preparing to sacrifice Isaac rather than Ishmael, and an atheist filmmaker may pass on making a movie promoting any faith.
Such situations do not change our minds because we cherish living in a country where friends and neighbors can disagree, even passionately, without using the powers of the state to quash debate and coerce conformity. We would not like to force others to say something that violates their conscience, and we would not like to be forced to say something that violates our conscience. We respect our neighbors’ right to hold sincere beliefs even when we strongly disagree with them, and we do not mistake such honest disagreement for bigotry or invidious discrimination.
The Supreme Court should rule for Lorie while making it clear that it is protecting her right to free expression and in no way recognizing a broader right to deny service solely based on animus toward a class of people. Such a ruling would honor two important societal interests: the interest in having neighbors honor one another as full citizens despite their disagreements and the interest in ensuring that no one is unjustly denied service because of his or her personal characteristics. We hope that the Supreme Court has the wisdom to see that both these interests can be respected and do not need to be pitted against one another.
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Howard Slugh is general counsel of the Jewish Coalition for Religious Liberty. Ismail Royer is director of the Islam and Religious Freedom Action Team at the Religious Freedom Institute. Both of their organizations filed friend of the court briefs supporting the petitioner in 303 Creative v. Elenis.
