From political primaries to school playgrounds, Americans know a debate when they hear one. As experience teaches us, winning arguments have a claim, persuasive reasoning and supporting evidence. Arguing without all three is like riding a tricycle with no front wheel. You can try it; you just won’t get far.
On Dec. 5, I will argue 303 Creative v. Elenis before the Supreme Court of the United States. Here’s the debate: Can the government apply a law to compel an artist to speak or stay silent? Our claim, reasoning and evidence say no.
The case involves Lorie Smith, a graphic artist and website designer in Colorado. Lorie loves to design custom, unique websites for her clients, including those who identify as LGBT. But there are some designs she cannot create regardless of who asks.
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Each of Lorie’s websites incorporates traditional storytelling and artistic elements. She pens words like an author, mocks up webpage storyboards like a film producer, and considers color, contrast, and balance like a painter. Lorie’s websites are her books; webpages are her chapters. Pixels are her paints; the website is her canvas. Lorie chooses each word, color hue, icon and more to express unique messages that celebrate causes she’s passionate about, including God’s design for marriage.
But a Colorado law requires her to create and publish custom websites promoting messages inconsistent with her beliefs.
The First Amendment, though, is clear: The government cannot dictate what we say and don’t say. In Lorie’s case, the free-speech threat is especially severe. Colorado seeks the authority to commandeer Lorie’s virtual stories — her websites — and redeploy them to promote Colorado’s view of marriage. That compels Lorie into betraying her sincerest beliefs, destroys her autonomy and changes her message. That’s unconstitutional.
Consider some reasoning. No one thinks the government can direct a writer’s words, a painter’s palette, or a cartoonist’s characters. But that’s the equivalent of Colorado’s attempt to co-opt Lorie’s custom artwork.
Regardless of whether you agree with Lorie’s beliefs about marriage, the outcome here will have a far-reaching effect. If Colorado can compel Lorie’s speech, then another government could require an LGBT artist to create a website criticizing same-sex marriage. Or another could force a Jewish designer to create a poster celebrating Easter. In that sense, a win for Lorie ensures we’re all free to speak without fear of government punishment.
Then there’s the undisputed evidence. Colorado stipulated — meaning formally conceded in court — that each of Lorie’s custom websites are "original" and "expressive." And Colorado stipulated that Lorie is "willing to work with all people" and "gladly" serves all clients, regardless of sexual orientation. Combine this evidence, and Lorie is like most artists. She serves everyone while lending her heart, mind and artistic hand to those projects that promote messages consistent with her values.
Colorado and others ignore this reasoning and evidence to make other claims. Like that two-wheeled tricycle, those claims don’t get far.
For example, Colorado claims that its law just regulates sales. But Colorado turns a blind eye to the admitted facts. Lorie isn’t selling hamburgers or cups of coffee. Colorado agreed that Lorie’s websites are custom expression conveying unique messages, so applying the law here regulates her speech.
The claim rests on faulty reasoning too. Under Colorado’s theory, the First Amendment acts like a vacation time clock: It starts when we punch out of work and stops when we punch back in. In reality, the First Amendment never goes on vacation — we don’t leave it at home when we go to work. Recognizing the danger of Colorado’s theory, artists of all stripes — like a world-famous graphic designer, a tattoo artist, and movie producers — support Lorie’s case even if they disagree with her particular views on marriage.
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Colorado and others also disingenuously claim that protecting Lorie would take us back to ugly times in our nation’s history where people were denied access to essential goods and services based on who they were. That claim is false. Such conduct — rejecting an entire class of people — is both despicable and illegal. A win for Lorie would never permit this. And our firm — Alliance Defending Freedom — would oppose any such effort. This fearmongering has nothing to do with this case and Lorie’s custom expression that Colorado seeks to compel.
Let’s not forget, Colorado already agreed that Lorie chooses her projects based on the what and not the who — what "message" she’s being requested to create, not who makes the request. An LGBT website designer shouldn’t be faulted for promoting her views about same-sex marriage. Neither should Lorie be censored from designing consistent with her beliefs about marriage.
