Religious liberty advocates rally against 'unconstitutional' Colo. law as Supreme Court mulls pivotal case
WASHINGTON — Religious liberty advocates gathered for a rally outside the United States Supreme Court Monday as the justices heard oral arguments in the case of 303 Creative LLC v. Elenis, a case that will likely have major implications for religious liberty and freedom of expression.
Alliance Defending Freedom, which is representing plaintiff Lorie Smith in the case, held a rally outside the Supreme Court as oral arguments took place inside. The case stems from Christian website designer Lorie Smith of 303 Creative challenging the Colorado Anti-Discrimination Act out of concern that the law could characterize her objection to creating websites celebrating same-sex marriages as a violation of nondiscrimination protections for LGBT-identified individuals.
ADF contends that Colorado state law constitutes a violation of its client’s First Amendment rights, which protect her from having to promote a message she disagrees with. Speakers at the rally included business owners who have faced such violations of their rights by states and local governments. Throughout the rally, counterprotesters, many of whom were affiliated with the LGBT activist groups, attempted to drown out the speakers by chanting through megaphones, blowing whistles, broadcasting sirens and profane songs.
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Smith outlined the rationale for her lawsuit in remarks delivered to the crowd after the oral arguments concluded: “After starting [303 Creative], I was excited to expand my portfolio to design custom wedding websites that celebrate the beauty of marriage between husband and wife, but my home state made it clear that I’m not welcome in that space. Colorado is trying to force me to create custom artwork and promote ideas inconsistent with my faith, the core of who I am.”
“No government official should be able to do that to any of us, regardless of whether your beliefs are the same as mine or perhaps different,” she added. “With much prayer and consideration, I decided to challenge Colorado’s injustice and plead my case here today.” Smith’s case was heard before the Supreme Court after the website designer experienced setbacks in her effort to challenge Colorado's Anti-Discrimination Act at the district court level and from the U.S. Court of Appeals for the 10th Circuit.
Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, Colorado, took his case all the way to the Supreme Court after the Colorado Civil Rights Commission ruled that by declining to bake a cake for a same-sex wedding, even when such weddings were illegal in that state, Phillips violated state law. While the Supreme Court ruled 7-2 in 2018 that the Colorado Civil Rights Commission demonstrated particular hostility toward Phillips’ religious beliefs, the devoutly Christian Phillips found himself in court again for refusing to bake a cake celebrating a gender transition.
Phillips addressed the crowd, saying, “my family and I have suffered enormously.” He spoke of receiving “death threats” and recalled having to reduce the number of employees at his bakery from 10 to four. Phillips was one of several speakers who highlighted how the outcome of Smith’s case will not just impact Christian business owners like himself, but other business owners who might not want to create content that contradicts their convictions.
Phillips cited an “LGBT cake artist who doesn’t want to criticize same-sex marriage” or “a Democrat speechwriter who doesn’t want to promote the Republican Party” as examples of people who could end up having to “speak messages that violate their core beliefs” if the Supreme Court rules against Smith.
Phillips and his attorney, Matt Sharp of ADF, discussed the litigation surrounding the baker in an interview with The Christian Post. “We are in our third lawsuit ... We were in court at the Colorado Court of Appeals in October and we’re waiting for those judges to announce their decision,” Phillips said.
Phillips also weighed in on the 303 Creative case, predicting that “this case will impact every American because I think the justices have to clearly understand the importance of being able to speak messages you want to speak, to deny creating messages that you don’t want to create, and they have to affirm that.” According to Phillips, such an outcome would be “a good thing for all Americans, including my case.”
“I think the outcome of this case should be pretty easy for them to decide. The state of Colorado is trying to compel Lorie to create messages that she doesn’t want to create and they should understand that and overrule that.”
“These freedoms are important to every American, creative professionals like myself but everybody on the sidewalk here, everybody in the country, we all value these freedoms,” he added. “At Masterpiece Cakeshop, we serve everybody who comes in. We continue to do that and we’re able to do that because of Alliance Defending Freedom’s support, and support and encouragement from people like this, to help other people understand the importance of these free speech rights.”
Monday’s oral arguments come less than a week after the Senate passed the so-called Respect for Marriage Act, which critics maintain would gut religious liberty protections for those who oppose same-sex marriage. In a statement issued ahead of the Senate’s passage of the measure, billed as an effort to codify a right to same-sex marriage into federal law, the Liberty Counsel warned that “this bill will not protect the religious beliefs of people like the Christian website designer with 303 Creative.”
“[The Respect for Marriage Act] will overturn any victory from that case, and she will be forced to create websites celebrating same-sex marriage,” the law firm added. The bill awaits approval from the House of Representatives before it can head to President Joe Biden’s desk. A different version of the measure passed earlier this year, without religious liberty protections added by the Senate critics dismiss as inadequate.
Sharp contended: “Lorie’s case is going to be more important after the Respect for Marriage Act. With that, we saw Congress giving the federal government broad new powers to go after people of faith and religious organizations because of their beliefs about marriage and so a win for Lorie, in this case, would provide vital protections for so many Americans that may be concerned about how that law could be used against them.”
In an interview with The Christian Post, Blaine Adamson of Lexington, Kentucky, elaborated on how his religious convictions inform the day-to-day operations of his business in ways that extend beyond the debate about whether or not to provide services promoting same-sex weddings or LGBT ideology that dominate national headlines. Adamson, who owns the shirt printing business Hands On Originals, ended up in court for refusing to create shirts celebrating the Lexington Pride Festival. He ultimately won his case.
Adamson recalled printing shirts for a “lesbian-owned band that actually played at that festival because the message was something that was clear with my conscience.” At the same time, he expressed gratitude for a lesbian-owned screen printing company that “reached out to us and they wanted us to continue to stand because they understood if we’re forced to print messages that go against our beliefs, that they could be forced to print messages that go against their conscience.”
Speaking to the crowd, Adamson identified a “potentially hurtful message about those who identify as LGBT” and “a T-shirt that pictured Jesus sitting on a bucket of chicken” that he viewed as “disrespectful” as examples of requests he had “declined to design and print.”
Following the oral arguments, Smith and ADF’s Kristen Waggoner addressed the rally to discuss their thoughts about the trajectory of the case following the oral arguments. Waggoner stressed that Smith “always considers the message” when deciding whether or not to provide services to a particular client: “As Justice [Neil] Gorsuch said today, ‘It’s the what, not the who.’”
“The state of Colorado agrees that Lorie serves everyone, regardless of how they identify and that her art is pure speech. But Colorado argued today it should have the power to compel its citizens to imagine, to speak and to promote messages that violate their core convictions. That’s unconstitutional and it violates the First Amendment’s promise of free speech to all.”
Waggoner pushed back on the arguments Colorado made to the justices, stating that “public accommodation laws and the First Amendment have peacefully coexisted for years and they will continue to do so if Lorie wins.” She concluded that “to allow the government to continue to compel speech would be an existential threat not just to the right to free speech but to all of our freedoms.”
Religious liberty advocates shared their views about the significance of the 303 Creative case and the Respect for Marriage Act in interviews with CP. David Closson of the Family Research Council spoke about the impact of the Respect for Marriage Act, describing it as “massively problematic on the religious liberty front.”
“I think the Respect for Marriage Act would severely undermine religious freedom protections,” he said. “I think the First Amendment makes it very clear that you can’t force anyone to tell stories or messages that are against their deeply held beliefs. I’m very optimistic that this Supreme Court will uphold Lorie Smith’s right when it comes to her free speech.”
Additionally, Closson declared, “I think it’s important for the Supreme Court to recognize that the First Amendment protects speech and that this law in Colorado that tells Lorie Smith what kind of messages she can and cannot create is patently unconstitutional.”
Jonathan Keller, president of the California Family Council, traveled across the U.S. to attend the event. “This case is going to not just affect Colorado but it will also impact us in California,” he said.
“We’re definitely very concerned about the Respect for Marriage Act and we are worried that it could badly impact not just pastors but also Christian individuals. We realize that there are supposed protections for religious liberty inside the law but those do not apply to people like Lorie and those would not apply to Christian business owners in the state of California.”
Keller expressed concern that “an aggressive government, whether it’s California or Colorado or any one of the other states around the country with an activist attorney general, they could turn around and attack the freedom of association, freedom of religion, freedom of speech rights of any business owner who could be forced to violate their religious freedom.”
Concerned Women for America President Penny Young Nance reacted to the oral arguments by telling CP that “she felt cautiously optimistic” about its outcome “because the 303 Creative case is a clear-cut case in which the Constitution protects Lorie Smith.” Nance suggested that “the other side feels very comfortable in living their beliefs,” stressing that supporters of traditional marriage should feel the same way about living out their beliefs.
“This week ... the Family Foundation of Virginia was planning an event at a German restaurant in Richmond and just hours before the event, the restaurant called and canceled on them because of their position on the [Respect for Marriage Act] and went the extra step of putting up on their website a statement against them and … cost them money because they waited so long to cancel,” she added.
“The chef, I’m sure, felt that he did not want to use his creative gifts to promote an organization that went against his conscience and so, although the other side feels very comfortable in their position, they don’t want the Constitution to protect Lorie Smith and other women of faith. Incidentally, Lorie Smith has clients who are gay and has no problem with that. She just does not want to be compelled by the government to use speech that violates her conscience.”
Nance added: “The Constitution of the United States and the First Amendment protects the right to free speech, the government cannot stop us from speaking, nor can they force us to deliver a message that violates our consciences.” Reiterating that she feels “very optimistic about the outcome,” she predicted that “the Supreme Court will clearly see that point.”
The Supreme Court is expected to rule in 303 Creative by the end of its term, slated to conclude in June.
Ryan Foley is a reporter for The Christian Post. He can be reached at: [email protected]
