Drawing the line: Colorado artist prohibited from disagreeing with govt about marriage files suit

DENVER – Alliance Defending Freedom attorneys representing a Colorado graphic designer who specializes in designing and creating custom websites filed suit in federal court Tuesday to challenge a state law that forces her to use her artistic talents to promote same-sex ceremonies if she creates custom websites and graphics celebrating weddings between one man and one woman. The law also forbids Lorie Smith and her studio, 303 Creative, from publicly expressing the religious reasons she declines to do so, including her belief that marriage is the union of one man and one woman and why she can’t use her artistic talents to promote a same-sex marriage.

“Artists shouldn’t be threatened with punishment for disagreeing with the government’s preferred views,” said ADF Senior Counsel Jeremy Tedesco. “The state must allow artists the freedom to make personal decisions about what art they can and can’t create.”

“Every American, including artists, should be free to peacefully live and work according to their faith without fear of unjust punishment by the government,” added ADF Legal Counsel Samuel Green. “Just because an artist creates expression that communicates one viewpoint doesn’t mean Colorado can require her to express all viewpoints. It’s unlawful to force an artist to create against her will and intimidate her into silence just because the government disagrees with her beliefs.”

The lawsuit is known in legal circles as a “pre-enforcement challenge,” which allows citizens to challenge a law that threatens their rights before the government enforces it against them. Such lawsuits are the bread and butter of civil rights litigation, with organizations like the American Civil Liberties Union and Planned Parenthood routinely filing them to attack laws they oppose, sometimes even prior to the effective dates of those laws.

The complaint in 303 Creative v. Elenis, which ADF attorneys filed in the U.S. District Court for the District of Colorado, explains how the state law runs afoul of various provisions of the U.S. Constitution, including the First Amendment’s Free Speech and Free Press clauses. Specifically, the suit challenges Colorado Revised Statute § 24-34-601(2)(a), a portion of Colorado’s Anti-Discrimination Act. The Colorado Civil Rights Commission has construed CADA to force artists like Smith to create objectionable art even though Smith happily serves everyone and decides what art to create based on the art’s message—not her client’s personal characteristics. The law also prohibits artists from expressing any religious views about marriage that could make someone feel “unwelcome, objectionable, unacceptable, or undesirable” because of their sexual orientation.

The law is the same one the commission used against another ADF client, Jack Phillips of Masterpiece Cakeshop, who has asked the U.S. Supreme Court to hear his case. As the ADF complaint on behalf of Smith explains, the commission ruled that Phillips violated the law because he declined to promote a message about marriage that the state supports, but the commission then found that three other cake artists did not violate the law when they refused to promote religious messages about marriage that Colorado opposes: “Thus, Defendants force expressive businesses to express messages supporting same-sex marriage but they allow expressive businesses to refuse to express messages opposing same-sex marriage. This is a content- and viewpoint-based interpretation and application of CADA.”

Smith’s lawsuit points to the websites of other Colorado artists, such as photographers, that freely and clearly voice their beliefs supporting same-sex marriage. As the complaint notes, Smith and 303 Creative “support the rights of these expressive businesses and their owners to express their beliefs and conduct their businesses in a way that promotes those beliefs and does not promote contrary beliefs. Plaintiffs simply wish to enjoy those same freedoms. Yet CADA strips Plaintiffs of these freedoms. That is the foundational reason for this lawsuit—to restore Plaintiffs to an equal footing with other expressive business owners in regard to their right to express messages that are consistent with their beliefs, and to avoid expressing those messages that are not.”

“If Lorie and 303 Creative were to convey their desired messages and decline to convey objectionable messages, they would face costly and onerous investigations, fines of up to $500 for each violation, and oppressive mandates—such as staff re-education training—that can themselves compel objectionable speech,” the ADF complaint continues. “Thus, solely because of Colorado law, Lorie and 303 Creative are refraining from expressing their views of God’s design for marriage on 303 Creative’s website and from offering their services to design, create, and publish wedding websites expressing their desired message celebrating and promoting marriage as an institution between one man and one woman. To restore their constitutional freedoms to speak their beliefs and not be compelled to speak messages contrary to those beliefs, and to ensure that other creative professionals in Colorado have the same freedoms, Lorie and 303 Creative ask this Court to enjoin Colo. Rev. Stat. § 24-34-601(2)(a) and declare that it violates their rights.”

MRD Law partner Michael L. Francisco, one of nearly 3,100 private attorneys allied with ADF, is serving as local counsel in the case for Smith and 303 Creative.

• Pronunciation guide: Tedesco (Teh-DESS’-koh)

Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.

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