Free Speech Case Tests Whether Anti-Discrimination Laws Can Compel Artistic Work


The U.S. Supreme Court is hearing yet another case that will determine whether LGBT activists can compel artists to produce creative works that violate their sincerely held religious beliefs.

The case, 303 Creative v. Elenis, involves Lorie Smith, a devout Christian who specializes in designing websites.

Smith wants to expand her business to include the designing of websites; however, she does not want to design website for same-sex couples because doing so would violate her religious beliefs regarding marriage. She wants to post a message on her business’s website informing potential customers that she only creates websites for marriages that reflect her faith-informed view that marriage is an institution that involves a man and a woman.

That message, however, would violate the Colorado Anti-Discrimination Act (CADA), which would require her to create custom websites celebrating same-sex marriages and prohibit such statements.

Importantly, Smith’s site says — and the state of Colorado acknowledges as much — that she will work for clients regardless of their sexual orientation. She said she would happily provide web design for a gay man who operates an animal shelter, but she will not perform artistic work celebrating the specific act of same-sex marriage.

In 2016, Smith brought her case to the U.S. Court of Appeals for the Tenth Circuit. She argued that enforcing CADA against her was a violation of her First Amendment right to freedom of speech and free exercise of religion. The Court rejected her argument, ruling that the government has the authority and the power to force Smith to create art and convey messages that run contrary to her sincerely held religious beliefs.

The court also upheld a provision of CADA that creates an exception allowing secular artists to decline to engage in certain speech.

There are two questions before the SCOTUS.

The first is whether government can compel speech that is contrary to an artist’s religious beliefs violates the artist’s First Amendment rights to freedom of speech and free exercise of religion.

The second is whether CADA and similar laws can create secular exemptions but not religious ones.

In February, the Supreme Court agreed to hear Smith’s case, but only with regard to the alleged violation of her right to free speech.

This is not the first time the Supreme Court has dealt with the tension between religious liberty and Colorado’s anti-discrimination law.

In 2018, the court ruled in favor, narrowly, of Jack Phillips, a Christian baker who refused to make cakes for same-sex weddings. That ruling, however, relied on the apparent targeting of Phillips by Colorado officials, so the tension was left unresolved.

Four years later, the composition of the court has shifted in a more conservative direction, so many court watchers are expecting a win for Smith — and for religious freedom.


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