The right not to create

For Colorado website designer Lorie Smith, faith comes before business. “An artist uses a paintbrush to paint canvas, and I take the same approach to my work,” Smith said. “I simply object to being forced to pour my heart, my imagination, and my talent into messages that violate my conscience.”

But that’s exactly what Colorado’s Anti-Discrimination Act (CADA) would require her to do. Smith, who founded 303 Creative a decade ago, does not yet offer wedding website design services, but she plans to do so. She appealed to the Supreme Court on Friday after a federal appeals court in July concluded she must, under the law, offer her services for both heterosexual and same-sex weddings despite her Biblical beliefs about marriage.

In a 2-1 ruling, the majority acknowledged the Colorado law infringed on Smith’s First Amendment rights but said the state’s concern with “protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace” outweighed her constitutional concerns.

Alliance Defending Freedom (ADF) attorneys representing Smith argue the ruling contradicts prior decisions that have repeatedly smacked down governmental attempts to compel speech. They point out the state gives more leeway to other refusals to create content: “CADA … creates a ‘pro-LGBT gerrymander’ by requiring religious artists to celebrate same-sex marriage while allowing other artists to decline messages like ‘God is dead.’”

It is not the first time the Supreme Court had to mediate between religious business owners and LGBT advocates. In June 2018, the court concluded Colorado officials showed overt hostility to Masterpiece Cakeshop baker Jack Phillips’ religious beliefs when applying the same anti-discrimination law. But that opinion did not address whether creative professionals have a right not to create products with messages that violated their consciences.

Earlier this summer, the court declined florist Barronelle Stutzman’s appeal regarding a similar Washington anti-discrimination statute. ADF attorneys filed a motion for rehearing in July, citing the similarity to Smith’s case.

For Smith, the case is about more than just herself. “Today it’s me, but tomorrow it could be you,” she said. “My case is about the freedom of all Americans to live and work consistently with their beliefs.”