There is a compelled wedding expression case before SCOTUS right now. The case concerns a party, Lorrie Smith, who creates beautiful wedding websites: "Consistent with Ms. Smith’s religious beliefs, [she] intend[s] to offer wedding websites that celebrate opposite-sex marriages but intend[s] to refuse to create similar websites that celebrate same-sex marriages."
The 10th Circuit held that Smith's art was pure speech and applied strict scrutiny to her compelled speech claim, but found that, because of the unique quality of Smith's web design services, there was a compelling interest in requiring her to create wedding websites celebrating same-sex marriage: "To be sure, LGBT consumers may be able to obtain wedding-website design services from other businesses; yet, LGBT consumers will never be able to obtain wedding-related services of the same quality and nature as those that Appellants offer. Thus, there are no less intrusive means of providing equal access to those types of services."
The idea is that because the artistic expression of each artist is unique (and therefore not fungible), "there are no less intrusive means of providing equal access to those types of services." In other words, each artist has a monopoly over his or her unique artistic work.
This is a brilliant strategic move by the 10th Circuit, but is it persuasive? Art is unprotected under the First Amendment because the art of each artist is uniquely beautiful and therefore cannot be provided by other artists.
Of course the art of each individual artist is uniquely beautiful, but that is precisely why art and expression should not be treated as a public accommodation allowing customers to decide what messages artists must create.
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