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SCOTUS Begins to Consider Case With Far-Reaching Implications for Religious Freedom

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The Supreme Court is starting to consider a case with far-reaching implications for religious freedom.

On Monday, the court will begin considering 303 Creative v. Elenis, which revolves around Colorado designer Lorie Smith, a committed Christian who designs websites and is challenging the Colorado Anti-Discrimination Act by asserting that it violates her First Amendment rights to free speech and free exercise of religion. Smith is fighting for the right to create messages consistent with her religious beliefs and publish those beliefs on her website.

“The decision to take up Smith’s case, combined with the court’s recent rulings expanding religious liberties, suggests that Smith may be on the verge of securing the broader victory that Phillips sought four years ago,” Amy Howe of ScotusBlog wrote, referencing the famous 2018 Masterpiece Cakeshop v. Colorado Civil Rights Commission case in which the Supreme Court ruled that the Colorado Civil Rights Commission’s ruling against Christian baker, Jack Phillips, had been issued without utilizing religious neutrality, but the court did not deal with the larger issues of anti-discrimination laws, free exercise of religion, and freedom of speech.

Before Smith’s case was appealed to the Supreme Court — which is only considering the free speech question, not on the free exercise of religion issue — the U.S. Court of Appeals for the 10th Circuit ruled for Colorado, using what the plaintiff’s brief argued was a “novel, artists-are-monopolists theory.”

The 10th District’s Chief Judge, Timothy Tymkovich, responded in a blistering dissent, writing, “The majority concludes not only that Colorado has a compelling interest in forcing Ms. Smith to speak a government-approved message against her religious beliefs, but also that its public-accommodation law is the least restrictive means of accomplishing this goal. No case has ever gone so far. … It seems we have moved from ‘live and let live’ to ‘you can’t say that.’”

“The Constitution is a shield against CADA’s discriminatory treatment of Ms. Smith’s sincerely held religious beliefs, “Tymkovich wrote. “The Supreme Court’s repeated, emphatic disapprobation of compelled expressive speech leaves little room for other conclusions. So it is all the more troubling when, in a case where the parties have stipulated that Ms. Smith’s work is expressive speech — ‘[the] custom wedding websites will be expressive in nature’ — the majority decides that its compulsion is constitutional.”

“Ms. Smith would like to post on her website an honest, straightforward message about why she will only make wedding websites for weddings involving one man and one woman,” he pointed out. “Endorsing same-sex marriage is a message Ms. Smith will not create for any client. But CADA prevents her from informing clients of this.”

“The majority tells us not to worry because Colorado has good reasons to violate Ms. Smith’s conscience for the greater good. After all, she is only one person out of many. But this is misguided,” he charged.

Then he pointed out the absurdity of the state’s position, explaining, “Rather than embracing the idea that creative, expressive works are even worthier of First Amendment protection by virtue of their originality and intrinsic worth, the majority comes to the opposite conclusion. It holds that ‘unique goods and services are where public accommodation laws are most necessary to ensuring equal access.’ It premises this argument on the idea (novel to the First Amendment) of a “monopoly of one,” characterizing the “product at issue [as] not merely ‘custom-made wedding websites,’ but rather ‘custom-made wedding websites of the same quality and nature as those made by [Ms. Smith].’”

“The majority then concludes that ‘monopolies present unique anti-discrimination concerns,’ justifying regulation of a market in which ‘only [Ms. Smith] exist[s],’” Tymkovich continued, adding, “But this reductive reasoning leads to absurd results. By describing custom artists as creating a monopoly of one, the majority uses the very quality that gives the art value-its expressive and singular nature — to cheapen it. In essence, the majority holds that the more unique a product, the more aggressively the government may regulate access to it — and thus the less First Amendment protection it has. This is, in a word, unprecedented.”


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