U.S. Sen. Ted Cruz (R-Texas), member of the Senate Judiciary Committee, led a bicameral amicus brief with his Republican colleagues in the case of 303 Creative LLC v. Elenis, calling for the Supreme Court to review a circuit court decision that prohibits a Colorado business owner from exercising her free speech and religious liberty rights. The petitioner, Lorie Smith, runs the website design company 303 Creative and cannot provide custom services for same-sex weddings without violating her Christian faith. Under the Colorado Anti-Discrimination Act (CADA), however, she must not only provide these custom services, she is not even allowed to explain her disagreement. The Tenth Circuit Court of Appeals agreed with the Colorado Civil Rights Commission that the state can compel Ms. Smith’s creative speech—a decision that is wrong and should be reviewed by the Supreme Court. This case is a follow-on to Masterpiece Cakeshop, another Colorado case in which Sen. Cruz led an amicus brief for in 2018, which supported Masterpiece Cakeshop’s owner, Jack Phillips, as he argued that the Colorado Civil Rights Commission violated his constitutional rights by acting with hostility to his religious faith.
Senate co-signers of the amicus brief include Sens. Marsha Blackburn (R-Tenn.), John Boozman (R-Ark.), Mike Braun (R-Ind.), John Cornyn (R-Texas), Tom Cotton (R-Ark.), Steve Daines (R-Mont.), James E. Risch (R-Idaho), Josh Hawley (R-Mo.), James Inhofe (R-Okla.), James Lankford (R-Okla.), Mike Lee (R-Utah), Marco Rubio (R-Fla.), John Thune (R-S.D.), Thom Tillis (R-N.C.), and Roger Wicker (R-Miss.).
The amicus brief is led in the House of Representatives by U.S. Rep. Doug Lamborn (R-Colo.).
In the brief, the members wrote:
“As this Court has long recognized, ‘[a]t the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.’ Government compulsion of artistic expression like Ms. Smith’s ‘contravenes this essential right.’ Id. The Court should grant the petition.”
The Tenth Circuit’s reasoning makes clear the true purpose of CADA’s speech compulsions—to compel dissenters to mouth views with which they disagree and to silence opposing viewpoints. After all, as the Tenth Circuit recognized, same-sex couples have no shortage of alternative options for wedding website designs.”
The point of applying CADA to Ms. Smith, then, isn’t to provide a public accommodation; it’s to force her to conform her speech to the prevailing view. Yet it is well settled that the State “is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.”
“The First Amendment ensures that individuals of all faiths ‘are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.’
“Yet the Tenth Circuit’s decision allows the State to ‘wield CADA as a sword’ to compel speech conflicting with an individual’s deeply held beliefs. For example, an atheist musician could be forced to perform at an evangelical church service. Or a Muslim tattoo artist could be forced to write ‘My religion is the only true religion’ on the body of a Christian. These outcomes do not reflect—and profoundly undermine—our longstanding First Amendment traditions.
“Religious speech holds a uniquely important and protected place in American history and jurisprudence. Ms. Smith and others like her deserve the strongest possible First Amendment protection. The Court should grant the petition.”