Does the Constitution protect artistic freedom?

Think about this: If the First Amendment to the U.S. Constitution includes a right to artistic expression that covers adult entertainment and blasphemous art, then one would expect it would protect a website designer or florist making one-of-a-kind designs for weddings. The U.S. Supreme Court recently accepted a new case from a Christian wedding website designer that will put that intellectual integrity to the test as artistic freedom clashes with the LGBT agenda.

A broad right to artistic freedom has traditionally won favor with the court’s liberal justices (and their allies in the left-leaning legal professoriate and progressive public interest groups, like the American Civil Liberties Union). Defending nude pole dancing at the Kitty Kat Lounge, Justice Byron White would write, “dancing is an ancient art form and inherently embodies the expression and communication of ideas and emotions.” Justice White, we pause to ponder, was often considered one of the more conservative of the justices then serving on the court.

Arguing that the government could not choose to fund only art that was in line with the “general standards of decency and respect for the diverse beliefs and values of the American public,” Justice David Souter said it violated the First Amendment to deny funding to an artist whose “art” was to immerse a crucifix in a jar of urine. Justice Anthony Kennedy, joined by Justice Ruth Bader Ginsburg, once wrote, “In artistic … settings, indecency may have strong communicative content, protesting conventional norms or giving an edge to a work by conveying otherwise inexpressible emotions,” such that indecency was constitutionally protected.

Perhaps most famously, famously liberal Justice William O. Douglas would say the First Amendment should cover obscenity because “we are not in the realm of criminal conduct, only ideas and tastes. Some like Chopin, others like ‘rock and roll.’ Some are ‘normal,’ some are masochistic, some deviant in other respects. …”

Attorneys for Alliance Defending Freedom, having represented Barronelle Stutzman the florist and Jack Phillips the baker, have taken several trips to the Supreme Court to protect the right of Christians to artistic expression as well. Their rights need protection because LGBT activists are trying to use public accommodation laws, which force businesses to serve any customer regardless of their race, gender, or sexual orientation, to force people of faith to provide services for same-sex weddings contrary to their beliefs.

In many instances, serving a married gay couple in a business transaction poses no moral hazard for a faithful Christian. For example, selling a same-sex couple a new lamp for their home is not a moral compromise for Hobby Lobby. This principle breaks down specifically in the wedding industry itself, however, where a wedding vendor is being asked to facilitate the celebration of something they believe to be wrong, and often to use artistic gifts in the process.

Thus, the Christian wedding website designer is compelled to come to court to protect her rights. The Supreme Court recently decided to hear the appeal of Lori Smith, owner of 303 Creative LLC. The petition seeks to protect Smith’s rights as an artist not to be compelled to create art by the State of Colorado’s nondiscrimination law, the same underlying legal question consistently pressed by other Christians.

This case will test the intellectual integrity of the court’s liberals and their outside allies: Do they truly believe in artistic freedom, or will the demands of LGBT activists always rank higher on any priority list?

Intellectual integrity is an important attribute of a good judge. It is one thing that distinguishes judges from politicians because it shows whether you decide the case the same way when you personally like the result and when you don’t. Intellectual integrity can be difficult. Sometimes it costs you popularity with your friends and allies when you have to rule in a way that is consistent but disappointing to their political agenda.

The ACLU has already failed that test in this case. On its website, the ACLU proudly proclaims, “The First Amendment embodies the belief that in a free and democratic society, individual adults must be free to decide for themselves what to read, write, paint, draw, compose, see, and hear.” Unless, that is, you decide not to make art for a same-sex wedding: The ACLU represented the gay couple that sued to force a Christian florist to provide flowers for their nuptials.

For the Supreme Court’s conservatives, hopefully, the case is an open-and-shut one: the First Amendment broadly protects a right against compelled speech, as recognized recently in Janus v. AFSCME and NIFLA v. Becerra. We will have to wait and see if there are still any liberal justices willing to display consistency in their defense of artistic liberty.