US Supreme Court to hear case of artist threatened under ‘Orwellian’ Colorado law

WASHINGTON – The U.S. Supreme Court agreed Tuesday to take the case of a Denver-area website designer subject to a Colorado state law that censors and coerces the speech of creative professionals whose religious beliefs do not conform to state orthodoxy.

Alliance Defending Freedom attorneys representing the designer, Lorie Smith of 303 Creative, asked the high court to review a 2–1 decision by a panel of the U.S. Court of Appeals for the 10th Circuit that ruled in favor of Colorado’s coercive law. The law, referred to by the dissenting 10th Circuit judge as an “Orwellian diktat,” is the same one that continues to threaten Colorado cake artist Jack Phillips of Masterpiece Cakeshop.

“The government doesn’t have the power to silence or compel creative expression under the threat of punishment. It’s shocking that the 10th Circuit would permit Colorado to punish artists whose speech isn’t in line with state-approved ideology,” said ADF General Counsel Kristen Waggoner, Smith’s attorney. “Colorado has weaponized its law to silence speech it disagrees with, to compel speech it approves of, and to punish anyone who dares to dissent. Colorado’s law—and others like it—are a clear and present danger to every American’s constitutionally protected freedoms and the very existence of a diverse and free nation.”

The 10th Circuit issued an unprecedented decision in the case, 303 Creative v. Elenis, holding that Smith serves “all people regardless of sexual orientation,” yet Colorado’s Anti-Discrimination Act requires her to engage in speech that violates her conscience and in turn creates a “substantial risk” of removing “certain ideas or viewpoints from the public dialogue.” Further, the law allows secular artists but not religious ones like Smith to make “message-based refusals.” The 10th Circuit nonetheless took the extreme position that the government may force an artist to create expressive content, even if that artist’s “pure speech” violates her faith, going so far to suggest that the more unique or custom the speech is, the more power the state has to compel it.

For years, Colorado has relentlessly sought to target certain speakers, and other states have followed that example. As ADF explained in a brief asking the high court to accept Smith’s case, “The First Amendment’s promises of free speech and religious liberty are bedrock principles. Yet over the past decade, those promises have been shattered: Elane Photography and Sweet Cakes are out of business, Barronelle Stutzman was forced to retire, Emilee Carpenter is risking jail, Bob Updegrove and Chelsey Nelson are in harm’s way, and Jack Phillips is still in court, pursued by a private enforcer who wants to finish the job. This Court must act now or officials with enforcement power over nearly half the country’s citizens will continue compelling artists to speak against their consciences while silencing them from explaining their beliefs.”

Sixteen states, 45 members of Congress, and numerous legal scholars, economists, publishers, media organizations, and others filed friend-of-the-court briefs in support of Smith’s petition.

Alliance Defending Freedom is an alliance-building, non-profit legal organization committed to protecting religious freedom, free speech, parental rights, and the sanctity of life.

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