10th Circuit Court Rules Against Religious Liberty for Artists Like Me

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I saw what was coming. But it turned out to be so much bigger – so much worse – than I thought.

It is hard to be an artist of any kind in Colorado and not see what the state has been doing to Jack Phillips, the cake artist who declined to create a wedding cake that would celebrate a same-sex wedding. His case went all the way to the U.S. Supreme Court a few years ago, where it determined that our state officials’ contempt for Phillips's faith undermined their attempts to regulate his cakes and coerce his conscience.

Two more legal attacks have engulfed Phillips since then, and it’s clear the clouds haven’t parted. In his current legal battle, an activist attorney first complained to state officials and then sued Phillips personally in court because he declined to create a custom cake celebrating a gender transition. And – as a fellow artist who shares many of Phillips's beliefs – I have to assume they’ll be coming after me, too, sooner or later.

That’s why I challenged the state law that would compel me to use my creativity to communicate ideas and messages I don’t agree with, including those on marriage and sexuality. What my lawsuit has revealed is that the courts are even more open than many of us realized to letting officials punish religious freedom and silence free speech.

I am a web designer who “paid my dues” working for others and, in time, decided to open my own studio, 303 Creative. I thoroughly enjoy creating personalized websites and working with individuals and small businesses to help them solve their challenges, promote their events, and market their products and services. Like any commissioned artist and speaker, I love using my talents to shape messages for my clients – provided those messages align with my values.

Wedding websites offer a natural fit for my skills, but in today’s culture, that immediately raises the question of promoting not only unions between a man and a woman, but same-sex ceremonies, too. As with Jack Phillips, my religious beliefs won’t sanction that second option, and I draw the line at creating a site that would promote views contrary to my conscience.

Of course, other website designers might draw that line differently. But on other topics, those designers have various boundaries that they can’t cross and messages they won't promote.

And that’s the larger point. No matter where you draw the line on marriage, the government shouldn’t be drawing the line for any speaker, telling them what they can’t say, and telling them what they must say.

I realized I had to take a stand on behalf of all artists. So I challenged Colorado’s law, with the help of Alliance Defending Freedom.

Unfortunately, a three-judge panel with the U.S. Court of Appeals for the 10th Circuit saw things differently. The majority conceded that my web designs constitute speech protected by the First Amendment, that I serve customers regardless of their sexual orientation, and that I decline projects based on my objection to the content of a website, not the persons asking for a website.

But the majority also determined that Colorado’s law trumps my First Amendment rights: that I can actually be compelled to create art that communicates ideas contrary to my conscience and then be forced to publish those ideas on the internet for all to see. I can be forced to violate my deeply held religious beliefs. I can be made to do all of these things while being forced to put my company’s name – its seal of approval – on websites that promote ideas I disagree with.

Incredibly, the majority even decided that – as a person of unique, distinctive creative skills – I constitute a monopoly. And, as a monopoly, I have no legal right to retain my artistic freedom. The more unique my speech becomes, the more power the government has to regulate it. Imagine telling Taylor Swift that she has to warble whatever lyrics the government directs her to sing because no one writes songs quite like she does.

A ruling like that is such a breathtaking assault on free speech that the chief judge on the 10th Circuit bench was aghast at its implications. He said the decision was unprecedented, subverted our core understanding of the First Amendment, and posed a danger to First Amendment freedoms for countless Americans all over the country.

Which is why my attorneys have petitioned the U.S. Supreme Court to take my case and reverse the 10th Circuit’s decision. No government official has the right to supersede the conscience rights of its citizens, forcing them to express messages they don’t believe in. If we let government officials do that, well ... you can see for yourself what’s coming.

Lorie Smith is owner of 303 Creative.



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