If you’re an artist, you know a fact most people might not: Creativity isn’t something you can switch off.  Passion isn’t, either.  For artists – whether you’re a musician, a painter, a graphic designer, a cakeshop artist or a web developer – your creative license is fundamental to everything you do.  But what if you were forced to create something that goes against your beliefs?

Ask Lorie Smith, the founder and purveyor of 303 Creative in Denver, Colorado.  Smith and 303 Creative aren’t your typical web and graphic design company.  She crafts beautiful, unique websites for her clients that capture and reflect meaningful messages – messages that channel her creativity and her imagination.  It took a long time for Smith to get here, after years working for someone else and her life-changing decision – finally – to found her own studio.

Then in 2016, Colorado passed the “Anti-Discrimination Act.”  Under the law, Smith would have no choice but to lend her artistic talents to creating websites she doesn’t believe in or that violate her religious beliefs.  In her case, this would include a client requesting a website celebrating same-sex weddings.  Smith’s deeply held religious beliefs adamantly hold that marriage is between one man and one woman.

Even more, the law forbids Smith from even explaining on her website why she will celebrate certain ideas and not others.  Her First Amendment right to artistic expression is being violated.  Colorado is censoring her free speech.

Smith sued the Colorado Civil Rights Commission for violating her rights in a case that’s now before the Supreme Court, 303 Creative v. Elenis.  She’s pressing forward after losing in the 10th Circuit Court of Appeals, represented by Alliance Defending Freedom (ADF) in a petition to SCOTUS.  Elenis refers to Aubrey Elenis, who is the Commission’s director.

Smith’s argument has nothing to do with who the prospective client, but it’s about the message the would-be customer wants presented on the product.  You can’t split custom art from expressing a message any more than you can separate the opinion from an opinion column.  They’re intrinsically linked in the same way.

We often have this idea that art is just a product to be bought and sold like anything else at the store.  Thinking this way – as though art is just a commodity – makes it easier for government to step in and compel speech by an artist with laws purporting to be aimed “against discrimination.”  Yet laws forcing artists to craft custom messages that defy their beliefs throttle creative expression and turn the artistic process into nothing more than a transaction.

Art isn’t just a product to be sold: It’s a method of expressing oneself.  ADF attorney Kate Anderson explained in 2018 that, by pursuing cases like Lorie Smith’s, their goal is to protect artists’ conscience rights. “We just want to help creative professionals be able to live and work according to their beliefs and be able to be free to do that, whatever that means for them,” she said. “I just think that it is such an important thing.”

Colorado’s Civil Rights Commission has already been found by the U.S. Supreme Court (SCOTUS) to have gone too far in this area.  In a 7-2 decision a few years ago, SCOTUS ruled that the Commission was explicitly hostile toward religion and religious expression by Colorado cakeshop artist Jack Phillips.

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, SCOTUS “called out the Commission’s double standard of punishing Jack, but not the three artists who refused messages against same-sex marriage. Holding that the free exercise clause forbids hostility toward religion, it rejected one Commissioner’s claim that believing marriage is between a man and woman is akin to being racist.”

Freedom of speech implies the right to express your own beliefs freely, not to simply say things the government agrees with.  Especially if the government tells you that you must express that message with your unique talents.  Free speech necessarily encompasses artistic freedom.  Forcing an individual to violate his or her conscience by creating art which reflects a message counter to their strongly-held beliefs (religious or otherwise) – under the threat of fines or jailtime – is antithetical to freedom.