Does Colorado violate the Free Speech Clause of the First Amendment if it forces an artist to create a work with a particular message? The Supreme Court will soon decide this question, the subject of numerous lawsuits and divided court decisions.

Case in point: Lorie Smith, graphic artist, website designer, and owner of design firm 303 Creative, uses her talents to design original, customized websites and graphics for her clients consistent with her Christian faith. 

Through wedding website development, Lorie seeks to promote her belief that God designed marriage as an institution between one man and one woman and to encourage couples’ lifelong commitment to each other.

Should a customer desire a website that promotes messages contrary to her beliefs, such as messages promoting infidelity, abortion, or same-sex marriage, Lorie respectfully explains that she can only design websites consistent with her faith and refers such requests to other website designers.

That’s illegal, according to the 10th Circuit Court of Appeals’ interpretation of the Colorado Anti-Discrimination Act. According to the 10th Circuit, Lorie violates Colorado law if she informs the public that she cannot create website messaging contrary to her faith and if she refuses to create such messaging. The 10th Circuit thus forces Lorie to create websites which convey messages against her religious beliefs and restricts her ability to explain her faith.

In 303 Creative LLC v. Elenis, the United States Supreme Court will decide whether a state may compel the speech of commissioned artists. The Supreme Court has said laws that prohibit discrimination in public accommodations apply to conduct but are constitutionally suspect when they target speech. Lorie argues that the First Amendment’s Free Speech Clause protects her right to remain silent on particular matters. She argues that she gladly serves everyone, including LGBT customers, and only makes referrals when the message they would like her to advance through her designs is one with which she disagrees. 

The Supreme Court decided a factually similar dispute in the 2018 Masterpiece Cakeshop case, also involving Colorado’s Anti-Discrimination Act. In that case, the Court sided with a baker who declined to create a wedding cake for a same-sex wedding based on his religious beliefs. The Court held that the state violated its obligation of religious neutrality under the Free Exercise clause. Evidence showed the state civil rights division disparaged the baker’s religion and inconsistently applied conscience objections, and the Court effectively sidestepped the Free Speech question.

Not Justice Clarence Thomas, however, who addressed head-on the Free Speech issue in his concurring opinion in Masterpiece Cakeshop. Thomas first acknowledged that the act of creating a wedding cake is expressive conduct, and that the Constitution limits the government’s authority to restrict or compel

By forcing [the baker] to create custom wedding cakes for same-sex weddings, Colorado’s public-accommodations law ‘alter[s] the expressive content’ of his message…Forcing [the baker] to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are ‘weddings’ and suggest that they should be celebrated – the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring [the baker] to ‘bear witness to [these] fact[s]…or to ‘affir[m]…a belief with which [he disagrees].

Justice Thomas also addressed the argument that the baker should be forced to create the same-sex wedding cake to prevent him from “denigrating the dignity” of same-sex couples and subjecting them to “humiliation, frustration and embarrassment.” Citing the bedrock First Amendment principle that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable, Justice Thomas asserted:

States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified.

Thomas noted that the Court’s Obergefell v. Hodges decision, holding a Constitutional right to same-sex marriage, does not diminish the baker’s right to free speech, and minority opinions must be protected.

Justice Thomas finally warned that “free­dom of speech could be essential to preventing Obergefell from being used to ‘stamp out every vestige of dissent’ and ‘vilify Americans who are unwilling to assent to the new orthodoxy.’”

That question—whether the new orthodoxy overrides an artist’s expressive speech or expressive silence—is squarely before the Court in 303 Creative LLC. Simply substitute “web designer” for “baker” and “website” for “cake.” With this case, the Court will resolve whether the government has the authority to compel expressive conduct contrary to conscience.