The Supreme Court will hear oral arguments on Monday for 303 Creative LLC v. Elenis and consider whether the state of Colorado can compel a web designer to create messages that violate her religious beliefs. The case is an opportunity for the court to expand its decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission and make clear that people of all religions and backgrounds have the right to live in accordance with their convictions without fear of retaliation.
The facts in 303 Creative resemble those in Masterpiece Cakeshop, though the central question of the case is different. Like Colorado baker Jack Phillips, graphic designer Lorie Smith is a Christian who wants to run a business in accordance with her religious beliefs. She would like to create custom wedding websites for her clients. But she is unable to do so because of Colorado's "anti-discrimination" law, which could be used to punish her if she refuses to create websites celebrating same-sex marriages. This same law has been used repeatedly against Phillips, who continues to be in court 10 years later.
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Smith filed a pre-enforcement challenge to the Colorado Anti-Discrimination Act, arguing that it violates her rights under the First Amendment's free exercise and free speech clauses. The Supreme Court has agreed to review only her free speech claim.
Smith’s case has implications that reach far beyond religious liberty. The central question in 303 Creative is whether the state can use public accommodation laws to override citizens’ First Amendment rights. If the state can force Smith to speak a message with which she disagrees, it can force anyone else to do the same. It could, for example, force a pro-choice photographer to create images celebrating the pro-life cause or force an atheist filmmaker to create a video promoting Christianity.
The U.S. Court of Appeals for the 10th Circuit acknowledged in its ruling that Smith’s wedding websites are “pure speech” and that CADA’s regulations restrict certain viewpoints and compel others. It argued, however, that the state has a legitimate interest in controlling what can and cannot be said because to do otherwise would “relegate LGBT consumers to an inferior market.”
The logic here is dangerous. Do we really want to give government officials the power to determine which group’s ideas deserve protection and which ones do not? Can the state really toss aside basic First Amendment protections to advance its own aims?
The answer to each of these questions should be "no." Colorado should not be allowed to force Smith to convey a message with which she disagrees, no matter how much the state agrees with that message. Our right to free speech, to control what we say and do not say, is the bedrock of our First Amendment. Without it, the rest of our rights will crumble and fold beneath the weight of government coercion.
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