Publishers, lawyers, states join Colorado Christian artist pursuing free speech

A long list of individuals, groups and organizations have submitted arguments to the U.S. Supreme Court on behalf of a Colorado graphics designer who has asked the court to affirm her free speech rights against an attack by the state of Colorado that seeks to impose a state-approved ideology on its citizens.

The case is 303 Creative vs. Elenis in a battle being fought by the Alliance Defending Freedom on behalf of 303 Creative and its owner, Lorie Smith.

She is fighting Colorado’s so-called “nondiscrimination” requirement that demands she speak in favor of same-sex marriage, an action that violates her faith, and forbids her to explain online that her beliefs do not allow such promotions.

The case is about pure speech, as the question the high court agreed to decide is whether states can violate the First Amendment with their demands for “nondiscrimination.”

The ADF cited a diverse group of “artists, publishers, LGBT-advocacy organizations, legal scholars and 20 states” that have joined Smith’s fight against the state’s left-leaning – but approved – ideological statements.

“George and Maxine Maynard—the prevailing party in one of the Supreme Court’s most important compelled-speech cases, Wooley v. Maynard, also filed in support of Smith and free speech,” the ADF reported.

“Even though Colorado admitted that Smith works with people from all walks of life, including those who identify as LGBT, Colorado wants to force her to speak messages about marriage that go against her core convictions,” the ADF explained.

“As the briefs filed in this case in support of Lorie agree, free speech is for everyone. The government can’t force anyone to say something they don’t believe,” said her lawyer, Kristen Waggoner. “When Lorie creates a design or website, she communicates a message consistent with her beliefs. And the First Amendment protects Lorie and every American’s right to speak and express ideas without fear of government punishment regardless of whether the government agrees with those beliefs.”

The Association of Certified Biblical Counselors Inc. explained that Colorado “requires citizens of Colorado to enter into contracts against their will, and to produce goods or services under penalty of prosecution. To force one to create a product or provide a service is, by definition, ‘involuntary servitude.'”

A coalition of dozens of states told the high court that the Colorado requirement attacks “a message” that Smith conveys, or declines to convey. In that, they argue, Colorado “violates the constitutional rights of its citizens, because the First Amendment prohibits states from forcing individuals, including people who create custom speech for a living, to speak in favor of same-sex marriage.”

A statement from a long list of members of Congress points out, “Amici may hold a variety of views about same-sex marriage. But they all agree that the government has no authority to compel individuals to express opinions that violate their firmly held religious beliefs.”

Professor Christopher R. Green, who has written about the issues involved multiple times, said, “The stakes here are high. Those seeking to make an example of traditionally-minded wedding professionals can use today’s information technology to find those professionals precisely in order to be denied service and thereby force such professionals out of public life. A loss by 303 Creative here will inevitably allow the weaponization of public accommodations law.”

The Lonang Institute elaborated:

Not all written or spoken viewpoints are true. The first and foremost recorded declaration of fake news and misinformation was spoken by the devil though the serpent, his director of the disinformation governance board. The serpent tweeted out a false narrative about the path to true knowledge. It was believed by those present who were demonstrably harmed. The devil then spun a conspiracy theory about how to be like God knowing good and evil. His audience discussed it and then followed suit. The whole world fell into chaos, all because of one or two statements of misinformation. But God did not respond like Colorado. He did not compel the devil to speak His truth. He did not prohibit the devil from speaking that being’s viewpoint, though judging it to be false. He did not compel the devil or his disinformation governance board director to recant spreading misinformation or confess a contrary belief. Though God had a compelling interest in banning such speech as the harm to mankind was palpable, long lasting and contrary to human wellbeing, the Creator declined to take any action to stop or restrain its propagation. God chose only to curse the serpent’s body as was His right as its Creator. Yet, Colorado is not the Petitioners’ creator. No such diversity of thought or respect for human freedom as shown by God exists in the State of Colorado. … The state’s belligerent Accommodations Clause in the Colorado Anti- Discrimination Act (“CADA”) “‘compels’ [Petitioner Smith] to create speech” celebrating marriages that her conscience tells her she cannot celebrate.”

First Amendment scholars Eugene Volokh and Dale Carpenter said, “the First Amendment freedom not to speak must include the freedom not to create speech…. A freelance writer cannot be punished for refusing to write press releases for the Church of Scientology, even if he is willing to work for other religious groups. A musician cannot be punished for refusing to play at Republican-themed events, even if he will play at other political events….”

The opening brief for Smith recently was filed.

It was several years ago that Colorado brought formal action against Jack Phillips, who declined, as owner of Masterpiece Cakeshop, to promote same-sex unions in violation of his constitutionally protected religious and speech rights. In that case, the state had tried to impose a reindoctrination program on Phillips, to address his beliefs about same-sex marriage.

The Supreme Court handed him a victory in a decision that scolded the state of Colorado then for its “hostility” to Phillips’ Christian faith. But the narrow decision was based on that hostility, and didn’t resolve the issue that is the sole question in the new case: “Whether applying a public accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”

Now, the ADF noted, “Colorado law requires Smith to design graphics and websites that violate her religious beliefs about marriage as the union of one man and one woman and censors what she wants to say on her own website.”

The state had to admit that Smith actually does work with people from all lifestyle choices, including the LGBT lifestyle, but it stills insists she speak messages about marriage that violate her faith.

“Free speech is for everyone. The government can’t force Americans to say something they don’t believe,” said Waggoner. “The First Amendment protects the right of every American to express ideas without fear of government punishment even if the government disagrees with those ideas.

“Yet Colorado continues to violate Smith’s constitutional rights by insisting she speak messages about marriage inconsistent with her beliefs. We hope the Supreme Court will uphold free speech for all Americans, because without this freedom, America will cease to be a vibrant and free democracy that rejects government coercion and promotes human flourishing.”

The 10th Circuit Court, located in the leftist enclave of Denver, decided 2-1 that the state could violate the First Amendment with its so-called nondiscrimination demand.

But the dissent there called the opinion “staggering” based on the fact that the “Constitution protects Ms. Smith from the government telling her what to say…”

The brief that opens the case at the Supreme Court explains, “Forcing artists like painters, photographers, writers, graphic designers, and musicians to speak messages that violate their deeply held beliefs fails to comport with the First Amendment’s promise of ‘individual dignity and choice…’ As this Court unanimously held over 25 years ago, the government may not use public-accommodation laws to compel speakers to endorse certain messages and eschew others.”

It continues, “Government officials are using their power to coerce those who hold views those officials disfavor. The consequences are often severe. Barronelle Stutzman was forced to retire and hand over her company after Washington prohibited her from creating floral art for weddings. Elane Photography and Sweet Cakes went out of business entirely. Emilee Carpenter is facing six-figure fines and jail. Chelsey Nelson and Bob Updegrove are in litigation. And Jack Phillips has been in court for 10 years—despite prevailing in this Court. Such coercion will continue to increase unless this Court issues a definitive ruling protecting the First Amendment rights of these creative professionals.”

When the Phillips case was before the Supreme Court, the evidence showed Colorado allowed pro-LGBT bakers to refuse requests to create a cake with the Old Testament condemnation of homosexuality as a theme because of their “beliefs.” The state, however, denied Phillips exactly the same protections regarding his beliefs.

The issue also came up recently when Gov. Jared Polis claimed, falsely, that the state didn’t interfere in decisions by its businesses. He was trying to lure the Disney corporation into building a theme park in the state where outdoor activities are limited for weeks on end because of the weather.

That arose because of Disney’s fight with the state of Florida over a law protecting children in schools of LGBT indoctrination attempts.

The 10th Circuit’s odd conclusion was that Smith’s creations are so good, so unique, that those products are available to the public ONLY through her, so the state has a right to force her to provide them, even against her beliefs.

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