303 Creative Facts and Question Presented From Oyez

 

Facts of the case

Lorie Smith is the owner and founder of a graphic design firm, 303 Creative LLC. She wants to expand her business to include wedding websites. However, she opposes same-sex marriage on religious grounds so does not want to design websites for same-sex weddings. She wants to post a message on her own website explaining her religious objections to same-sex weddings.

The Colorado AntiDiscrimination Act (“CADA”) prohibits businesses that are open to the public from from discriminating on the basis of numerous characteristics, including sexual orientation. The law defines discrimination not only as refusing to provide goods or services, but also publishing any communication that says or implies that an individual’s patronage is unwelcome because of a protected characteristic.

Even before the state sought to enforce CADA against her, Smith and her company challenged the law in federal court, alleging numerous constitutional violations. The district court granted summary judgment for the state, and the U.S. Court of Appeals for the Tenth Circuit affirmed.

Question

Does application of the Colorado AntiDiscrimination Act to compel an artist to speak or stay silent violate the Free Speech Clause of the First Amendment?

 

Did the Court tip its hand when certifying the Question Presented? 

So, SCOTUS will decide the wedding vendor compelled speech issue this Term. One way or the other!

As in Masterpiece and Telescope Media, in 303 Creative the government basically says

--“if you create art you wish to create,

--you must also create art you do not wish to create.

If you create art celebrating traditional marriage, you must also create art celebrating same-sex marriage.

This is what I call a double whammy—a double viewpoint-based law.

In other words, the law imposes both a viewpoint restriction on speech you wish to express

--and a viewpoint compulsion of speech you do not wish to express.

If you say 2 plus 2 equals 4--the law requires you to say 2 plus 2 equals 5!

The penalty for expressing a viewpoint you wish to express--is the requirement that you must also express a competing viewpoint you wish not to express.

You must speak out of both sides of your mouth!

This is a deadly poison to the First Amendment and the right of a speaker to say what he wishes to say and to not say what he does not wish to say.

The wedding vendor cases restrict both sides of speaker autonomy—both the right to speak and the right not to speak.

What are your thoughts?