Over the summer, the U.S. Supreme Court delivered a landmark victory for free speech in 303 Creative v. Elenis. The court reaffirmed the bedrock First Amendment principle that the government may not compel Americans to speak a message that violates their beliefs. That freedom protects everyone, and all views — those that we like and those that we loathe.
But it’s one thing to acknowledge these truisms, it’s another thing to apply them. That is now the responsibility of lower courts across the country. And it’s our responsibility, as citizens, to safeguard this cherished freedom.
In 303 Creative, the Supreme Court held that Colorado could not misuse a law to compel graphic designer Lorie Smith to design custom websites that celebrate a view of marriage that violates her beliefs. That decision rightly resolved a critical legal question that had been percolating in lower courts for years.
But many artists before Lorie endured a different outcome. And other artists are still waiting for courts to apply 303 Creative to prevent state or local governments from compelling their speech.
Ten years ago, the New Mexico Supreme Court decided that a state law required photographer Elaine Huguenin to create photographs that contradicted her religious beliefs. That decision forced Elaine to close her business to avoid betraying her faith. Adding insult to injury, one New Mexico Supreme Court justice infamously told Elaine that sacrificing her beliefs was “the price of citizenship” in America.
Around that same time, cake artist Jack Phillips first drew the ire of Colorado officials. He was asked to create a custom wedding cake celebrating a same-sex wedding. Jack declined because that would have forced him to express a message about marriage he does not believe. Colorado sued him, and his case went to the U.S. Supreme Court, where justices criticized state officials for demonstrating “a clear and impermissible hostility towards” Jack’s faith.
Undeterred, just a few days later, Colorado took legal action against Jack again. But the state quickly settled after evidence revealed Colorado’s ongoing hostility against Jack. Now, he’s in the midst of his third related lawsuit, which the Colorado Supreme Court will hear next year .
Throughout the country, artists whose businesses and creations are inextricably connected to and guided by their faith found themselves bearing the weight of government coercion.
Barronelle Stutzman, a great-grandmother and custom floral artist from Washington, spent nearly 10 years standing for her constitutional rights. She eventually settled her case, which allowed her to retire with her conscience intact. Blaine Adamson, a promotional print shop owner, had to defend his freedom to design custom t-shirts consistent with his beliefs up to Kentucky’s Supreme Court. Along the way, he received vitriolic emails and calls. Large customers pulled their business, too.
Many other artists — including calligraphers, videographers, and photographers — also took a stand to defend their freedom to create art reflecting their deeply held beliefs.
These artists have three things in common. First, they serve all people, including those who identify as LGBT. Their decisions to accept or decline a project always depend on the message they’re being asked to express, not on the identity of the person making the request.
Second, each artist has faced severe penalties for violating the law — devastating financial costs, mandatory educational programs, and jail time for declining to say something they don’t believe.
And third, each of them simply wants the freedom to create art that is consistent with their faith. Put differently, they desire the freedom to decide for themselves what messages to express through their art.
The 303 Creative decision assures them — and all Americans — of this right. But the implications of this ruling now come front and center in two separate cases that are currently on appeal.
These cases involve Chelsey Nelson and Emilee Carpenter who create photographs and write blogs that celebrate their belief that marriage is the union of one man and one woman. Chelsey and Emilee are challenging local laws that would compel them to promote different views of marriage.
Both have asked their respective appellate courts to apply the same First Amendment protections affirmed in 303 Creative to their cases.
Their arguments go like this. Photographs and blogs are speech; they communicate ides. Chelsey and Emilee gladly serve people of all backgrounds, including those who identify as LGBT. Like most artists, there are some messages they can’t create, regardless of who asks. And 303 Creative held that the government cannot compel an artist to say something that contradicts their beliefs. That’s a right that runs to the soul of what it means to be an American.
It’s a right so many have sacrificed so much to preserve for their fellow citizens. May our nation’s best judges recognize the worth of that sacrifice – not as “the price of citizenship,” but as its highest privilege.
Bryan Neihart is legal counsel with Alliance Defending Freedom (@ADFLegal).
The views expressed in this piece are those of the author and do not necessarily represent those of The Daily Wire.