Amicus Curiae Brief — 303 Creative LLC, et al., Petitioners v. Aubrey Elenis, et al.

No. 21-476

In the

Supreme Court of the United States

__________________

303 CREATIVE LLC, et al.,

Petitioners,

v.

AUBREY ELENIS, et al.,

__________________

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

__________________

BRIEF OF AMICI CURIAE INSTITUTE FOR

FAITH AND FAMILY AND JEWISH

COALITION FOR RELIGIOUS LIBERTY IN

SUPPORT OF PETITIONERS

__________________

TAMI FITZGERALD

DEBORAH J. DEWART

THE INSTITUTE FOR FAITH Counsel of Record

ATTORNEY AT LAW

AND FAMILY

9650 Strickland Road

111 Magnolia Lane

Suite 103-222

Hubert, NC 28539

Raleigh, NC 27615

(910) 326-4554

(980) 404-2880

lawyerdeborah@outlook.com

tfitzgerald@ncvalues.org

Counsel for Amici Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY OF

THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I.

THE CONSTITUTION PROTECTS THE

PERSONAL SERVICES REQUIRED TO

CREATE PROTECTED EXPRESSION . . . . . 2

A. The Tenth Circuit admits CADA is a

content-based, viewpoint-based regulation

of protected expression . . . . . . . . . . . . . . . 3

B. The action required to create expression

is entitled to First Amendment protection

.................................. 5

II.

PETITIONER’S OPERATION OF HER

WEBSITE DESIGN BUSINESS IN

ACCORDANCE WITH HER MORAL AND

RELIGIOUS CONSCIENCE IS NOT

IRRATIONAL, INVIDIOUS, OR

ARBITRARY . . . . . . . . . . . . . . . . . . . . . . . . . . 8

A. Early anti-discrimination laws were

carefully crafted with narrow definitions

of protected categories and the places

regulated. . . . . . . . . . . . . . . . . . . . . . . . . . . 9

B. Action motivated by conscience or

religious faith is not arbitrary, irrational,

or unreasonable . . . . . . . . . . . . . . . . . . . . 11

ii

C. The state must guard the rights of all

citizens, including those whose deep faith

collides with the values of current

legislative majorities . . . . . . . . . . . . . . . . 12

D. The government’s compelling interest-and

responsibility-is to safeguard the rights

guaranteed by the Constitution. . . . . . . . 16

III.

CADA IS NOT RELIGIOUSLY NEUTRAL.

THE LAW COMPELS EXPRESSION THAT

CONFLICTS WITH PETITIONER’S

RELIGIOUS CO N VICTIONS AND

CONSCIENCE. . . . . . . . . . . . . . . . . . . . . . . . 18

A. The conflict between anti-discrimination

law and faith is not only foreseeable but

inevitable . . . . . . . . . . . . . . . . . . . . . . . . . 19

B. CADA attacks liberty of thought and

conscience . . . . . . . . . . . . . . . . . . . . . . . . . 21

IV.

CADA CRUSHES DISSENT, CREATING

INTOLERANCE, UNIFORMITY,

EXCLUSION, AND INEQUALITY . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

iii

TABLE OF AUTHORITIES

CASES

Anderson v. City of Hermosa Beach,

621 F.3d 1051 (9th Cir. 2010). . . . . . . . . . . . . . . . 5

Ariz. Christian Sch. Tuition Org. v. Winn,

563 U.S. 125 (2011). . . . . . . . . . . . . . . . . . . . . . . 21

Baird v. State Bar of Arizona,

401 U.S. 1 (1971). . . . . . . . . . . . . . . . . . . . . . . . . 22

Benton v. Maryland,

395 U.S. 784 (1969). . . . . . . . . . . . . . . . . . . . . . . 24

Bery v. City of New York,

97 F.3d 689 (2d Cir. 1996) . . . . . . . . . . . . . . . . . . 3

Beverly Glen Music v. Warner Communications,

178 Cal. App. 3d 1142 (1986) . . . . . . . . . . . . . . . . 7

Boy Scouts v. Dale,

530 U.S. 640 (2000). . . . . . . . . . . . . . . . . . . . 11, 13

Brown v. Entm’t Merchs. Ass’n,

564 U.S. 786 (2011). . . . . . . . . . . . . . . . . . . . . . 3, 5

Brush & Nib Studio, LC v. City of Phoenix,

448 P.3d 890 (Ariz. 2019) . . . . . . . . . . . . . . passim

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014). . . . . . . . . . . . . . . . . . . . . . . 20

Capitol Square Review & Advisory Bd. v. Pinette,

515 U.S. 753 (1995). . . . . . . . . . . . . . . . . . . . . . . 18

iv

Chelsey Nelson Photography LLC v. Louisville/

Jefferson County Metro Gov’t,

479 F. Supp. 3d 543 (W.D. Ky. 2020) . . . . . passim

Communist Party v. SACB,

367 U.S. 1 (1961). . . . . . . . . . . . . . . . . . . . . . . . . 13

Cressman v. Thompson,

798 F.3d 938 (10th Cir. 2015). . . . . . . . . . . . . . . . 3

De Rivafinoli v. Corsetti,

4 Paige Ch. 264 (1833) . . . . . . . . . . . . . . . . . . . . . 7

Duff v. Russell,

14 N.Y.S. 134 (Super. Ct. 1891) . . . . . . . . . . . . . . 7

Espinoza v. Montana Department of Revenue,

140 S. Ct. 2246 (2020). . . . . . . . . . . . . . . . . . . . . 14

ETW Corp. v. Jireh Publishing, Inc.,

332 F.3d 915 (6th. Cir. 2003) . . . . . . . . . . . . . . . . 3

Everson v. Bd. of Educ. of Ewing,

330 U.S. 1 (1947). . . . . . . . . . . . . . . . . . . . . . . . . 22

Ex parte Thompson,

442 S.W.3d 325 (Tex. Crim. App. 2014) . . . . . . 5, 6

Flast v. Cohen,

392 U.S. 83 (1968). . . . . . . . . . . . . . . . . . . . . . . . 21

Gay Alliance of Students v. Matthews,

544 F.2d 162 (4th Cir. 1976). . . . . . . . . . . . . . . . 13

Girouard v. United States,

328 U.S. 61 (1946). . . . . . . . . . . . . . . . . . . . . . . . 21

v

Hamblin v. Dinneford,

2 Edw. Ch. 529 (N.Y. 1835) . . . . . . . . . . . . . . . . . 6

Heart of Atlanta Motel v. United States,

379 U.S. 241 (1964). . . . . . . . . . . . . . . . . . . . . . . 11

Hobbie v. Unemployment Appeals Comm’n

of Florida, 480 U.S. 136 (1987) . . . . . . . . . . . . . 12

Hurley v. Irish-American Gay, Lesbian & Bisexual

Grp. of Boston, 515 U.S. 557 (1995) . . . 3, 9, 17, 18

Jack v. Azucar Bakery,

Charge No. P20140069X (Colo. Civil Rights

Div. Mar. 25, 2015),

available at http://perma.cc/5K6D-VV8U . . . . . 14

Janus v. American Fed. of State, County, and

Municipal Employees, Council 31,

138 S. Ct. 2448 (2018). . . . . . . . . . . . . . . 16, 23, 25

Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495 (1952). . . . . . . . . . . . . . . . . . . . . . . . 3

Jucha v. City of North Chicago,

63 F. Supp. 3d 820 (N.D. Ill. 2014). . . . . . . . . . . . 3

Kaplan v. California,

413 U.S. 115 (1973). . . . . . . . . . . . . . . . . . . . . . . . 3

Keyishian v. Bd. of Regents,

385 U.S. 589 (1967). . . . . . . . . . . . . . . . . . . . . . . 22

Lee v. Weisman,

505 U.S. 577 (1992). . . . . . . . . . . . . . . . . . . . . . . 22

Lumley v. Wagner,

42 Eng. Rep. 687 (Ch. 1852) . . . . . . . . . . . . . 6, 7, 8

vi

Masterpiece Cakeshop Ltd. v. Colorado Human

Rights Commission,

138 S. Ct. 1719 (2018). . . . . . . . . . . . . . . . 6, 14, 17

McCreary County, KY v. ACLU,

545 U.S. 844 (2005). . . . . . . . . . . . . . . . . . . . . . . 22

Miller v. Amusement Enters., Inc.,

394 F.2d 342 (5th Cir. 1968). . . . . . . . . . . . . . . . 10

Nat’l Endowment for the Arts v. Finley,

524 U.S. 569 (1998). . . . . . . . . . . . . . . . . . . . . . . . 5

Nat’l Inst. of Family & Life Advocates v. Becerra,

138 S. Ct. 2361 (2018). . . . . . . . . . . . . . . . . . 24, 25

Obergefell v. Hodges,

576 U.S. 644 (2015). . . . . . . . . . . . . . . . . . . passim

Okeh Phonograph v. Armstrong,

63 F.2d 636 (9th Cir. 1933). . . . . . . . . . . . . . . . . . 7

Palko v. Connecticut,

302 U.S. 319 (1937). . . . . . . . . . . . . . . . . . . . . . . 24

Piarowski v. Ill. Cmty. Coll. Dist. 515,

759 F.2d 625 (7th Cir. 1985). . . . . . . . . . . . . . . . . 3

Redgrave v. Boston Symphony Orchestra, Inc.,

855 F.2d 888 (1st Cir. 1988) . . . . . . . . . . . . . . . . . 7

Regan v. Time, Inc.,

468 U.S. 641 (1984). . . . . . . . . . . . . . . . . . . . . . . . 3

Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,

487 U.S. 781 (1988). . . . . . . . . . . . . . . . . . . . . . . 24

vii

Rosenberger v. Rector & Visitors of Univ. of

Virginia, 515 U.S. 819 (1995) . . . . . . . . . . . . . . . . 4

Schad v. Borough of Mount Ephraim,

452 U.S. 61 (1981). . . . . . . . . . . . . . . . . . . . . . . . . 3

Schneiderman v. United States,

320 U.S. 118 (1943). . . . . . . . . . . . . . . . . . . . . . . 24

Telescope Media Grp. v. Lucero,

936 F.3d 740 (8th Cir. 2018). . . . . . . . . . . . passim

The Civil Rights Cases,

109 U.S. 3 (1883). . . . . . . . . . . . . . . . . . . . . . . . . 10

ThinkRight Strategies v. City of Ann Arbor,

Case 2:19-cv-12233-DML-RSW

(E.D. Mich. 2019) . . . . . . . . . . . . . . . . . . . . . . . . 15

Thomas v. Collins,

323 U.S. 516 (1945). . . . . . . . . . . . . . . . . . . . . . . 24

Thomas v. Review Bd. of Ind. Emp’t,

450 U.S. 707 (1981). . . . . . . . . . . . . . . . . . . . . . . 12

Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622 (1994). . . . . . . . . . . . . . . . . . . . . . . . 4

Turner v. Safley,

482 U.S. 78 (1987). . . . . . . . . . . . . . . . . . . . . . . . 20

United States v. Windsor,

570 U.S. 774 (2013). . . . . . . . . . . . . . . . . . . . . . . 17

VIP Prods. LLC v. Jack Daniel’s Props.,

953 F.3d 1170 (9th Cir. 2020). . . . . . . . . . . . . . . . 3

viii

Ward v. Polite,

667 F.3d 727 (6th Cir. 2012). . . . . . . . . . . . . 19, 20

West Virginia Bd. of Ed. v. Barnette,

319 U.S. 624 (1943). . . . . . . . . . . . . . . . . 16, 24, 25

White v. City of Sparks,

500 F.3d 953 (9th Cir. 2007). . . . . . . . . . . . . . . . . 3

Wooley v. Maynard,

430 U.S. 705 (1977). . . . . . . . . . . . . . . . . . . . 23, 24

STATUTES

Civil Rights Act of 1875 . . . . . . . . . . . . . . . . . . . . . . 10

Civil Rights Act of 1964, 42 U.S.C. § 2000a . . . . . . 10

42 U.S.C. § 2000a(b) . . . . . . . . . . . . . . . . . . . . . . 11

Colo. Rev. Stat. § 24-34-601(2)(a) . . . . . . . . . . passim

D.C. Code § 2-1402.31(a) . . . . . . . . . . . . . . . . . . . . . 15

OTHER AUTHORITIES

5A Corbin, Contracts (1964) § 1204. . . . . . . . . . . . . . 7

Nate Christiansen, A gym banned a white

supremacist, but Seattle law is on his side, (Feb.

14, 2018) https://crosscut.com/2018/02/a-gymbanned-a-white-nationalist-but-seattle-law-ison-his-side . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Feldman, Intellectual Origins of the Establishment

Clause, 77 N. Y. U. L. Rev. 346 (2002). . . . . . . . 21

ix

James M. Gottry, Note, Just Shoot Me: Public

Accommodation Anti-Discrimination Laws Take

Aim at First Amendment Freedom of Speech, 64

Vand. L. Rev. 961 (2011) . . . . . . . . . . . 8, 9, 10, 11

Julia Marsh, Judge: Bars are allowed to throw out

Trump supporters, New York Post (Apr. 25,

2018), https://nypost.com/2018/04/25/judge-bars

-are-allowed-to-throw-out-trump-supporters/ . . 15

Michael W. McConnell, “God is Dead and We have

Killed Him!” Freedom of Religion in

the Post-Modern Age, 1993 BYU L. Rev. 163

(1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Nora O’Callaghan, Lessons From Pharaoh and the

Hebrew Midwives: Conscientious Objection to

State Mandates as a Free Exercise Right, 39

Creighton L. Rev. 561 (2006) . . . . . . . . . . . . . . . 22

Protected Traits in DC, DC Office of Human Rights,

https://ohr.dc.gov/protectedtraits . . . . . . . . . . . . 15

Katie Rogers, Roommates Wanted. Trump

Supporters Need Not Apply., New York Times

(Feb. 10, 2017), https://www.nytimes.com/2017/

02/10/us/politics/roommates-trump-supporters.

htm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Jack S. Vaitayanonta, Note: In State Legislatures

We Trust? The “Compelling Interest”

Presumption and Religious Free Exercise

Challenges to State Civil Rights Laws, 101

Colum. L. Rev. 886 (2001) . . . . . . . . . . . . . . . . . . 9

1

INTEREST OF AMICI CURIAE1

The Institute for Faith and Family (“IFF”) is a

North Carolina nonprofit corporation established to

preserve and promote faith, family, and freedom by

working in various arenas of public policy to protect

constitutional liberties, including the right to live and

work according to conscience and faith. See

https://iffnc.com. The Jewish Coalition for Religious

Liberty, along with IFF, seeks to advance a culture

where human life is valued, religious liberty thrives,

and marriage and families flourish.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

Petitioner is a Christian website designer who

respectfully serves many people, including the LGBT

community, but she does not create messages that

conflict with her faith. 303 Creative LLC v. Elenis, 6

F.4th 1160, 1170 (2021). The Colorado AntiDiscrimination Act, Colo. Rev. Stat. § 24-34-601(2)(a)

(CADA) requires her to either violate her religious faith

or face crippling penalties that threaten to shutter her

business. Petitioner believes marriage is the union of

one man and one woman, but CADA’s antidiscrimination provisions demand that she design

websites for same-sex weddings if she offers services

for opposite sex weddings. The First Amendment not

1

Counsel of record for all parties received notice at least 10 days

prior to the due date of amici’s intention to file this brief, and the

parties have consented. Amici curiae certify that no counsel for a

party authored this brief in whole or in part and no person or

entity, other than amici, their members, or their counsel, has made

a monetary contribution to its preparation or submission.

2

only protects expressive products, like the websites

Petitioner designs, but the personal services required

to create them. Creative professionals who run a

business in accordance with their deeply held faith and

conscience do not engage in arbitrary, invidious

discrimination when they decline to create messages

that offend their convictions. This Court should grant

the Petition and reverse the Tenth Circuit ruling to

prevent the use of anti-discrimination law as a weapon

to snuff out protected expression, and to clarify the

compelled speech doctrine in the context of creative

services.

ARGUMENT

I.

THE CONSTITUTION PROTECTS THE

PERSONAL SERVICES REQUIRED TO

CREATE PROTECTED EXPRESSION.

Cases involving creative professionals implicate

personal services protected by the First Amendment

because action is necessary to create expressive

products—artwork, videos, photographs, websites. In

Brush & Nib Studio, LC v. City of Phoenix, the Arizona

Supreme Court rejected the argument that creating

custom wedding invitations “purely involves conduct,

without implicating speech.” 448 P.3d 890, 905 (Ariz.

2019) (“B&N”). On the contrary, “[f]or such products,

both the finished product and the process of creating

that product are protected speech.” Id. at 907

(emphasis added). Similarly, in Telescope Media Grp.

v. Lucero, the creative activities “c[a]me together to

produce finished videos that are media for the

communication of ideas.” 936 F.3d 740, 752 (8th Cir.

3

2018) (“TMG”) (internal citations and quotation marks

omitted).

A. The Tenth Circuit admits CADA is a

content-based, viewpoint-based

regulation of protected expression.

The circuit court admits that Petitioner’s “creation

of wedding websites is pure speech.” 303 Creative, 6

F.4th at 1176. Marriage itself is “often a particularly

expressive event.” Id., quoting Obergefell v. Hodges,

576 U.S. 644, 657 (2015). Website design is protected

expression that conveys a message, like photography

and other artwork.2 “[P]hotography is speech when the

photographer’s artistic talents are combined to tell a

story about the beauty and joy of marriage.” Chelsey

2

Regan v. Time, Inc., 468 U.S. 641, 648 (1984); CNP, 479 F.Supp.

at 555 n. 93; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502

(1952) (motion pictures); Kaplan v. California, 413 U.S. 115, 11920 (1973) (“pictures, films, paintings, drawings, engravings”);

Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65-66 (1981)

(motion pictures, music, dramatic works); Hurley v. Irish-American

Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 569 (1995)

(art, music, literature); Brown v. Entm’t Merchs. Ass’n, 564 U.S.

786, 790 (2011) (books, plays, films, video games); ETW Corp. v.

Jireh Publishing, Inc., 332 F.3d 915, 924 (6th. Cir. 2003) (“music,

pictures, films, photographs, paintings, drawings, engravings,

prints, sculptures”); Cressman v. Thompson, 798 F.3d 938, 952

(10th Cir. 2015) (paintings, drawings, original artwork); White v.

City of Sparks, 500 F.3d 953, 955-56 (9th Cir. 2007) (original

artwork); Bery v. City of New York, 97 F.3d 689, 694-96 (2d Cir.

1996) (same); Piarowski v. Ill. Cmty. Coll. Dist. 515, 759 F.2d 625,

628 (7th Cir. 1985) (“art for art’s sake”); Jucha v. City of North

Chicago, 63 F. Supp. 3d 820, 825 (N.D. Ill. 2014) (“There is no

doubt that the First Amendment protects artistic expression.”);

VIP Prods. LLC v. Jack Daniel’s Props., 953 F.3d 1170, 1175 (9th

Cir. 2020) (dog toy that communicates a humorous message).

4

Nelson Photography LLC v. Louisville/Jefferson

County Metro Gov’t, 479 F. Supp. 3d 543, 557 (W.D. Ky.

2020) (“CNP”). Custom videos are “a form of speech . . .

entitled to First Amendment protection.” TMG, 936

F.3d at 751. Like the creative professionals in CNP and

TMG, Petitioner is engaged in protected expression.

The Tenth Circuit not only acknowledges that

creative expression is involved, but also admits “the

Accommodation Clause compels speech” and “works as

a content-based restriction.” 303 Creative, 6 F.4th at

1178 (emphasis added). And because CADA’s purpose

is “to remedy a long and invidious history of

discrimination based on sexual orientation” (id.), there

is a “substantial risk of excising certain ideas or

viewpoints from the public dialogue.” Id., quoting

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642

(1994). The court openly admits that “[e]liminating

such ideas is CADA’s very purpose.” 303 Creative, 6

F.4th at 1178 (emphasis added).

This is viewpoint discrimination on steroids—an

“egregious form of content discrimination.” Rosenberger

v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819,

829 (1995). As the dissent points out, “the content of the

message determines the applicability of the statute and

the viewpoint of the speaker determines the legality of

the message,” so “CADA is both content-and viewpointbased.” 303 Creative, 6 F.4th at 1202 (Tymkovich, C.J.,

dissenting).

5

B. The action required to create expression

is entitled to First Amendment

protection.

“It goes without saying that artistic expression lies

within . . . First Amendment protection.” Nat’l

Endowment for the Arts v. Finley, 524 U.S. 569, 602

(1998) (Souter, J., dissenting). So is the personal labor

required to create it. CADA demands that Petitioner

engage in personal services, using her creative talents,

to design a message that conflicts with her deeply held

religious convictions.

First Amendment protection extends to “creating,

distributing, or consuming” speech. Brown, 564 U.S. at

792 n.1 (video games). The TMG plaintiffs did not

merely “plant a video camera at the end of the aisle

and press record”—they intended “to shoot, assemble,

and edit the videos with the goal of expressing their

own views about the sanctity of marriage.” 936 F.3d at

751. Similar editing services are required to design a

website. Acts necessary to create expression—writing,

painting, or editing—cannot be disconnected from the

finished product. As the Ninth Circuit explained, “we

have never seriously questioned that the processes of

writing words down on paper, painting a picture, and

playing an instrument are purely expressive activities

entitled to full First Amendment protection.” Anderson

v. City of Hermosa Beach, 621 F.3d 1051, 1061-62 (9th

Cir. 2010). Designing a website is like “[u]sing a

camera to create a photograph” or “applying pen to

paper to create a writing or applying brush to canvas to

create a painting.” Ex parte Thompson, 442 S.W.3d

325, 337 (Tex. Crim. App. 2014). “[T]he process of

6

creating the end product cannot reasonably be

separated from the end product for First Amendment

purposes.” Id. (emphasis added).

Courts have applied these principles in favor of

creative professionals. Producing wedding videos

(TMG, 936 F.3d at 756) and designing wedding

invitations (B&N, 448 P.3d at 910) are protected

expression. The Phoenix Ordinance in B&N would have

forced plaintiffs “to personally write, paint and create

artwork celebrating a same-sex wedding . . . to design

and create invitations that enable and facilitate the

attendance of guests at a same-sex wedding.” 448 P.3d

at 922. In Masterpiece Cakeshop Ltd. v. Colorado

Human Rights Commission, “[f]orcing Phillips to make

custom wedding cakes for same-sex marriages requires

him to . . . acknowledge that same-sex weddings are

‘weddings’ and suggest that they should be

celebrated—the precise message he believes his faith

forbids.” 138 S. Ct. 1719, 1744 (2018) (Thomas, J.,

concurring in part and in the judgment).

Such state compulsion does a grave disservice to

customers seeking custom creative services. Coercion

produces a counterfeit. If an artist is repelled by the

message he must create and forbidden to even disclose

his viewpoint to potential customers, the finished

product will probably be unsatisfactory. That is one

reason courts are loathe to order specific performance

as a remedy for breach of a contract for personal

services—especially where artistic expression is

required.3 The New York Court of Chancery, declining

3

See, e.g., Hamblin v. Dinneford, 2 Edw. Ch. 529, 533-534 (N.Y.

1835) (actor); Lumley v. Wagner, 42 Eng. Rep. 687 (1852) (singer);

7

to compel a singer’s performance for an Italian opera,

expressed concern about “what effect coercion might

produce upon the defendant’s singing, especially in the

livelier airs; although the fear of imprisonment would

unquestionably deepen his seriousness in the graver

parts of the drama.” De Rivafinoli v. Corsetti, 4 Paige

Ch. 264, 270 (1833).

Right to remain silent. Like other speakers,

creative professionals have the right to remain silent

by declining to create expression. The First Circuit

considered the case of a well-known actress who sued

the Boston Symphony Orchestra for cancelling her

scheduled appearance in the wake of protests about her

political views. Redgrave v. Boston Symphony

Orchestra, Inc., 855 F.2d 888 (1st Cir. 1988). Actress

Redgrave argued that the cancellation violated the

Massachusetts Civil Rights Act (MCRA), which created

a private cause of action for violations. Redgrave, 855

F.2d at 901. The Orchestra asserted “a right to be free

from compelled expression,” and the court agreed: “A

distinguished line of cases has underscored a private

party’s right to refuse compelled expression.” Id. at

905. The “typical reluctance” of courts “to force private

citizens to act” (id., citing Lumley v. Wagner, 42 Eng.

Rep. 687, 693 (Ch. 1852)) “augments its

constitutionally based concern for the integrity of the

artist.” Id. Since private expression is encouraged and

Duff v. Russell, 14 N.Y.S. 134 (Super. Ct. 1891) (actress/singer);

Okeh Phonograph v. Armstrong, 63 F.2d 636 (9th Cir. 1933) (jazz

player); Beverly Glen Music v. Warner Communications, 178 Cal.

App. 3d 1142, 1145 (1986) (singer) (“Denying someone his

livelihood is a harsh remedy.”). See also 5A Corbin, Contracts

(1964) § 1204.

8

protected, the court saw “no reason why less protection

should be provided where the artist refuses to perform;

indeed, silence traditionally has been more sacrosanct

than affirmative expression.” Id. at 906. The Civil

Rights Act could not lawfully foreclose the Orchestra’s

decision not to perform, because that decision was itself

a constitutionally protected exercise of the right to be

free of compelled speech. The same analysis applies

here. The statutory rights of same-sex couples must be

“measured against the [Petitioner’s] constitutional

right against the state” (id. at 904) to be free of

compelled expression.

II.

PETITIONER’S OPERATION OF HER

WEBSITE DESIGN BUSINESS IN

ACCORDANCE WITH HER MORAL AND

RELIGIOUS CONSCIENCE IS NOT

IRRATIONAL, INVIDIOUS, OR

ARBITRARY.

Anti-discrimination laws, designed to provide a

shield, are increasingly used as a sword to cut off

expression. Petitioner’s refusal to create expression is

not irrational, invidious, or arbitrary. But CADA is

used to snuff out her speech and religious liberty.

“Discrimination” needs a clear, consistent definition

in this context. Declining to create or endorse a

message does not constitute “discrimination.” “[C]ourts

must more clearly evaluate when public

accommodation laws have actually been violated, as

opposed to when the individual or business is simply

refusing to endorse a particular message.” James M.

Gottry, Note, Just Shoot Me: Public Accommodation

Anti-Discrimination Laws Take Aim at First

9

Amendment Freedom of Speech, 64 Vand. L. Rev. 961,

999 (2011). Like the wedding invitation designers in

B&N, Petitioner does not seek “to employ the coercive

apparatus of government to impose disabilities on

others,” but rather, the “right not to engage in speech

that offends [her] deeply held religious beliefs . . . one

of our nation’s most cherished civil liberties.” B&N, 448

P.3d at 929.

A. Early anti-discrimination laws were

carefully crafted with narrow

definitions of protected categories and

the places regulated.

Anti-discrimination policies have ancient roots. The

Massachusetts law at issue in Hurley was derived from

the common law principle that innkeepers and others

in public service could not refuse service without good

reason. Hurley, 515 U.S. at 571. Anti-discrimination

principles have expanded over the years to encompass

more protected categories and places classified as

“public accommodations.” The potential encroachment

on religious liberty has vastly expanded.

Commentators have long recognized that the “conflict

between the statutory rights of individuals against

private acts of discrimination and the near universallyrecognized right of free exercise of religion places a

complex legal question involving competing societal

values squarely before the courts.” Jack S.

Vaitayanonta, Note: In State Legislatures We Trust?

The “Compelling Interest” Presumption and Religious

Free Exercise Challenges to State Civil Rights Laws,

101 Colum. L. Rev. 886, 887 (2001).

10

Early anti-discrimination laws focused almost

exclusively on eliminating the racial discrimination

that plagued the nation for decades. Just Shoot Me, 64

Vand. L. Rev. 961, 965 (2011). Primary responsibility

shifted to the states after this Court invalidated the

Civil Rights Act of 1875. The Civil Rights Cases, 109

U.S. 3 (1883); see Just Shoot Me, 64 Vand. L. Rev. at

965 n. 7. Later federal attempts succeeded but again

highlighted racial equality. The Civil Rights Act of

1964 “was enacted with a spirit of justice and equality

in order to remove racial discrimination from certain

facilities which are open to the general public.” Miller

v. Amusement Enters., Inc., 394 F.2d 342, 352 (5th Cir.

1968); see Civil Rights Act of 1964, 42 U.S.C. § 2000a.

The vast expansion of categories and places has

occurred with little analysis of the difference between

race and newly protected classes—or as to how and

when criteria may be legitimately related to a business

decision. The Thirteenth, Fourteenth, and Fifteenth

Amendments were added to the U.S. Constitution to

remedy the nation’s extraordinary problem of racial

discrimination. These provisions cannot readily be

transported into every other species of “discrimination,”

particularly when imposed on private citizens whose

own rights may be trampled. It is one thing to impose

nondiscrimination principles on the state—it is quite

another to impose those same standards on private

parties whose own liberties are at stake.

Early anti-discrimination laws narrowly defined

“places of public accommodation” in terms of transient

lodging, theaters, restaurants, and public

entertainment venues. Just Shoot Me, 64 Vand. L. Rev.

11

961 at 966. But eventually these traditional “places”

expanded beyond inns and trains to commercial

entities and even membership associations—escalating

the potential collision with First Amendment rights.

Boy Scouts v. Dale, 530 U.S. 640, 657 (2000). Even

today, federal law tracks common law rather than

broadly sweeping in any establishment that offers any

goods or services to the public. 42 U.S.C. § 2000a(b).

B. Action motivated by conscience or

religious faith is not arbitrary,

irrational, or unreasonable.

Discrimination is arbitrary where an entire class of

persons is excluded because of irrelevant factors.

Where widespread refusals deny an entire group access

to basic public goods and services—lodging, food,

transportation—protective measures are reasonable.

This Court rightly upheld federal legislation passed to

eradicate America’s long history of racial

discrimination. Heart of Atlanta Motel v. United States,

379 U.S. 241 (1964). But it is hardly arbitrary to avoid

promoting a cause for reasons of conscience. As

protection expands to more places and people, so does

the potential to employ anti-discrimination principles

to suppress traditional viewpoints and impose social

change on unwilling participants. Religious liberty is

particularly susceptible to infringement, because

“advocates of social change” are often intolerant

“toward the teachings of traditional religion.” Michael

W. McConnell, “God is Dead and We have Killed Him!”

Freedom of Religion in the Post-Modern Age, 1993 BYU

L. Rev. 163, 187 (1993).

12

Labeling religiously motivated conduct as

“discrimination” tends to exhibit constitutionally

prohibited hostility toward religion rather than

neutrality. See, e.g., Hobbie v. Unemployment Appeals

Comm’n of Florida, 480 U.S. 136, 142 (1987); Thomas

v. Review Bd. of Ind. Emp’t, 450 U.S. 707, 708 (1981).

Here, CADA exhibits hostility toward religion by

characterizing Petitioner’s religiously motivated

policies as unlawful “discrimination.”

C. The state must guard the rights of all

citizens, including those whose deep

faith collides with the values of current

legislative majorities.

The Constitution is an inclusive document

protecting the life, liberty, religion, and viewpoint of all

within its realm. Inclusion is a key rationale for antidiscrimination provisions. “The Constitution does not

require a choice between gay rights and freedom of

speech. It demands both.” CNP, 479 F.Supp. at 549.

But the liberty of all Americans will suffer irreparable

harm if the government is granted power to coerce

creative services that communicate its preferred

message. “There is a reciprocity and universality to

these rights of speech and conscience that give us all a

direct stake in protecting them . . . .” B&N, 448 P.3d at

929. Non-discrimination principles should never be

applied in a discriminatory, unequal manner that

squelches First Amendment rights. Ironically, CADA

creates an intolerable danger of exclusion for free

speech and artistic expression. The state can easily use

the law to punish persons who hold traditional

marriage beliefs by excluding them from full

13

participation in public life. If applied to Petitioner,

CADA would compel her to choose between her

convictions and her livelihood, all because she refuses

to sacrifice her conscience and faith on the altar of an

agenda she cannot support.

The First Amendment protects a broad spectrum of

expression, popular or not. Indeed, the increasing

popularity of an idea makes it all the more essential to

protect dissenting voices. Dale, 530 U.S. at 660.

Censorship spells death for a free society. “Once used

to stifle the thoughts that we hate...it can stifle the

ideas we love.” Gay Alliance of Students v. Matthews,

544 F.2d 162, 167-168 (4th Cir. 1976). First

Amendment freedoms “must be accorded to the ideas

we hate or sooner or later they will be denied to the

ideas we cherish.” Communist Party v. SACB, 367 U.S.

1, 137 (1961) (Black, J., dissenting).

Proponents of LGBT rights have accomplished

dramatic social and political transformation in just a

few years by exercising their rights to free speech,

press, association, and the political process generally.

Their “progress depended on the First Amendment’s

protection of expressive conduct that was once far less

popular than it is today, from marching in pride

parades to flying rainbow flags.” CNP, 479 F.Supp. at

564. These changes were possible because the

Constitution guards free expression and facilitates

advocacy of new ideas. But advocates are not entitled

to demand for themselves what they would deny to

others—otherwise, the constitutional foundation

crumbles and all Americans suffer. One group’s

14

aggressive assertion of rights can erode protection for

others.

Although LGBT citizens “cannot be treated as social

outcasts or as inferior in dignity and worth”

(Masterpiece Cakeshop, 138 S. Ct. at 1727), people of

faith “are members of the community too.” Espinoza v.

Montana Department of Revenue, 140 S. Ct. 2246, 2277

(2020) (Gorsuch, J. concurring). “[U]nder our

Constitution, the government can’t force them to . . .

create an artistic expression that celebrates a marriage

that their conscience doesn’t condone.” CNP, 479

F.Supp. at 548-549 (citations omitted).

The irony and implications have been recognized in

prior cases. In Masterpiece Cakeshop, Colorado law

“afforded storekeepers some latitude to decline to

create specific messages the storekeeper considered

offensive,” e.g., a Denver bakery that refused a

Christian customer’s request to create two bible-shaped

cakes inscribed with messages about the sinfulness of

homosexuality. Jack v. Azucar Bakery, Charge No.

P20140069X, at 2 (Colo. Civil Rights Div. Mar. 25,

2015), available at http://perma.cc/5K6D-VV8U.

Masterpiece Cakeshop, 138 S. Ct. at 1728. Properly

applied, anti-discrimination law could not force a gay

calligrapher to “create a program for a church that

preached against same-sex marriage” or compel

Michelangelo, if he were alive today, “to paint a chapel

ceiling in a way he deemed blasphemous”—although he

could be required to sell completed sculptures free of

discrimination. B&N, 448 P.3d at 929. As the Tenth

Circuit dissent observed, Colorado could “wield CADA

as a sword” and require “an unwilling Muslim movie

15

director to make a film with a Zionist message” or force

“an atheist muralist to accept a commission celebrating

Evangelical zeal.” 303 Creative LLC, 6 F.4th at 1199

(Tymkovich, C.J., dissenting).

The implications of anti-discrimination law are

particularly striking where political affiliation is (or is

not) a protected category.4 In Michigan, a conservative

consulting firm sued the City of Ann Arbor for

outlawing discrimination based on political beliefs,

forcing them to advocate views that contradict their

principles.5 In New York, bars may throw out Trump

supporters because the law does not protect against

political discrimination6 and renters seeking

roommates can advertise they do not want Trump

4

See, e.g., a current District of Columbia statute that prohibits

discrimination based not only on race or color, but also “religion,

national origin, sex, age, marital status, personal appearance,

sexual orientation, gender identity or expression, familial status,

family responsibilities, genetic information, disability,

matriculation, political affiliation, source of income, or place of

residence or business of any individual.” D.C. Code § 2-1402.31(a).

The D.C. Office of Human Rights lists 21 protected traits

applicable to housing, employment, public accommodations, and

educational institutions. https://ohr.dc.gov/protectedtraits.

5

ThinkRight Strategies v. City of Ann Arbor, Case 2:19-cv-12233DML-RSW (E.D. Mich. 2019). There was a stipulated dismissal in

2019 because the firm did not come within the definition of “public

accommodation.”

6

https://nypost.com/2018/04/25/judge-bars-are-allowed-to-throwout-trump-supporters/

16

supporters.7 But in Seattle, where political beliefs are

protected, a gym may lawfully ban a white

supremacist.8 The Eighth Circuit observed that if

Minnesota’s application of its law were correct, it could

“require a Muslim tattoo artist to inscribe ‘My religion

is the only true religion’ on the body of a Christian” if

the artist “would do the same for a fellow Muslim” or

“force a Democratic speechwriter to provide the same

services to a Republican.” TMG, 936 F.3d at 756.

D. T h e

government’s

compelling

interest—and responsibility—is to

safeguard the rights guaranteed by the

Constitution

A law like CADA that commands “involuntary

affirmation” demands “even more immediate and

urgent grounds than a law demanding silence.” Janus

v. American Fed. of State, County, and Municipal

Employees, Council 31, 138 S. Ct. 2448, 2464 (2018),

citing West Virginia Bd. of Ed. v. Barnette, 319 U.S.

624, 633 (1943) (internal quotation marks omitted). But

the government’s most compelling interest is to

preserve the constitutional rights of all citizens,

including—or perhaps especially—those who reject the

prevailing state orthodoxy. “[T]he same Constitution

held by Obergefell to guarantee the right of same-sex

couples to marry also protects religious and

philosophical objections to same-sex marriage.” CNP,

7

https://www.nytimes.com/2017/02/10/us/politics/roommates-tru

mp-supporters.html

8

https://crosscut.com/2018/02/a-gym-banned-a-white-nationalistbut-seattle-law-is-on-his-side

17

479 F.Supp. at 563, citing Obergefell, 135 S. Ct. at

2605; United States v. Windsor, 570 U.S. 774, 775

(2013); Masterpiece Cakeshop, 138 S. Ct. at 1727.

In TMG, Minnesota alleged an “important

governmental interest—preventing discrimination” by

ensuring that all its citizens were “entitled to full and

equal enjoyment of public accommodations and

services.” 936 P.3d at 749, 754. “[M]ost applications of

antidiscrimination laws . . . are constitutional,” and a

ruling in favor of a creative professional “is not a

license to discriminate.” CNP, 479 F.Supp. at 564. But

legislators and courts must beware of “peculiar”

applications that require speakers “to alter the[ir]

expressive content.” TMG, 936 P.3d at 755, citing

Hurley, 515 U.S. at 572-573. Where the government’s

apparent interest is “simply to require speakers to

modify the content of their expression” to align with a

preferred message, that interest is “not compelling.”

CNP, 479 F.Supp. at 559.

The state’s interest in preventing discriminatory

conduct does not trump the Constitution. The Arizona

Supreme Court found that the state’s interest in

ensuring equal access to publicly available goods and

services did not “justify compelling Plaintiffs’ speech by

commandeering their creation of custom wedding

invitations, each of which expresses a celebratory

message, as the means of eradicating society of biases.”

B&N, 448 P.3d at 914-915. “While the law is free to

promote all sorts of conduct in place of harmful

behavior, it is not free to interfere with speech for no

better reason than promoting an approved message or

discouraging a disfavored one, however enlightened

18

either purpose may strike the government.” Hurley,

515 U.S. at 579; see B&N, 448 P.3d at 915; TMG, 936

F.3d at 755. Even if the state could craft a narrowly

tailored law to accomplish its legitimate interest, “it

might still lose” in cases “where it is attempting to

compel religious speech at the core of the First

Amendment.” CNP, 479 F.Supp. at 559.

III.

CADA IS NOT RELIGIOUSLY NEUTRAL.

THE LAW COMPELS EXPRESSION THAT

CONFLICTS WITH PETITIONER’S

RELIGIOUS CONVICTIONS AND

CONSCIENCE.

There is nothing “religiously neutral” about a law

that deliberately restrains (or compels) expression

about a religious institution like marriage. CADA

stifles religious speech, which is not only “as fully

protected . . . as secular private expression,” but

historically, “government suppression of speech has so

commonly been directed precisely at religious speech

that a free-speech clause without religion would be

Hamlet without the prince.” Capitol Square Review &

Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995)

(internal citations omitted).

This case implicates two core liberties – speech and

religion. Like the wedding invitation designers in B&N,

Petitioner uses her creative skills to express a message

about marriage consistent with her faith. 448 P.3d at

917. The video producers in TMG wanted to “affect the

cultural narrative regarding marriage” through films

that portrayed “their view of marriage as a ‘sacrificial

covenant between one man and one woman.’” 936 F.3d

at 748. Minnesota’s anti-discrimination law

19

“burden[ed] their religiously motivated speech” about

marriage and reinforced their free speech claims. Id. at

759 (emphasis added). CADA imposes similar burdens

on Petitioner.

A. T h e

conflict

between

antidiscrimination law and faith is not only

foreseeable but inevitable.

Anti-discrimination laws covering sexual

orientation are increasingly weaponized to target

religious convictions about marriage. A head-on

collision is unavoidable. The Sixth Circuit warned

about the dangers of failing to apply an antidiscrimination policy “in an even-handed, much less a

faith-neutral, manner.” Ward v. Polite, 667 F.3d 727,

739 (6th Cir. 2012). Where a policy protects a category

defined by conduct that many religious traditions

consider sinful, faith-neutral application is virtually

impossible. People of faith will inevitably challenge

laws forcing them to abandon their core religious

convictions about marriage. The government’s failure

to foresee these religious conflicts parallels the

“reckless disregard” standard used in other contexts.

Even where the law does not explicitly target religion

on its face—or where government officials successfully

conceal their hostility—there is a “reckless disregard”

for the obvious, inevitable conflicts that will arise.

Dissenting Justices in Obergefell sent a clarion call

about the coming collision. Because marriage is not

strictly a governmental institution but also a religious

institution, it is “all but inevitable that the two will

come into conflict.” Obergefell, 135 S. Ct. at 2638

(Thomas, J., dissenting). And yet the viewpoint of “good

20

and decent people [who] oppose same-sex marriage as

a tenet of faith” is protected and “actually spelled out”

in the First Amendment—”unlike the right imagined

by the majority.” Id. at 2625 (Roberts, C.J., dissenting).

Marriage is a deeply personal matter that intersects

religious beliefs, speech, and action. See Turner v.

Safley, 482 U.S. 78, 96 (1987) (“[M]any religions

recognize marriage as having spiritual

significance ….”). Free exercise embraces not only the

freedom to believe but also “the right to express those

beliefs and to establish one’s religious (or nonreligious)

self-definition in the political, civic, and economic life of

our larger community.” Burwell v. Hobby Lobby Stores,

Inc., 573 U.S. 682, 736-737 (2014) (Kennedy, J.,

concurring). One of the reasons this nation is “so open,

so tolerant, and so free is that no person may be

restricted or demeaned by government” for exercising

religious liberty. Id. at 739 (2014) (Kennedy, J.,

concurring). As the Sixth Circuit observed, “tolerance

is a two-way street.” Ward v. Polite, 667 F.3d at 735.

This Court’s redefinition of marriage does not grant

same-sex couples a corollary right to coerce an

unwilling business owner to celebrate with them.

CADA operates to “vilify” creative professionals

“unwilling to assent to the new orthodoxy.” Obergefell,

576 U.S. at 741 (Alito, J., dissenting). Colorado

discards this Court’s concern about stigma and “put[s]

the imprimatur of the State itself on an exclusion that

soon demeans or stigmatizes those whose own liberty

is then denied.” Id. at 672.

21

B. CADA attacks liberty of thought and

conscience.

The victory for freedom of thought recorded in the

Bill of Rights recognizes that in the domain of

conscience there is a moral power higher than the

State. Girouard v. United States, 328 U.S. 61, 68

(1946). Religious liberty is closely correlated with the

liberty of conscience that underlies the Establishment

Clause and the unique taxpayer standing rules

developed in Flast v. Cohen, 392 U.S. 83 (1968): “[T]he

Framers’ generation worried that conscience would be

violated if citizens were required to pay taxes to

support religious institutions with whose beliefs they

disagreed.” Ariz. Christian Sch. Tuition Org. v. Winn,

563 U.S. 125, 141 (2011), quoting Feldman, Intellectual

Origins of the Establishment Clause, 77 N. Y. U. L.

Rev. 346, 351 (2002). An equivalent principle applies

here. Colorado requires Petitioner to violate her

conscience by creating messages and celebrating events

she believes are immoral. This is as great a frontal

assault on conscience as the Establishment Clause evil

of compelling citizens to financially support beliefs they

do not hold.

Petitioner wishes to conduct her business with

integrity, setting company policies consistent with her

conscience, moral values, and faith. Not everyone

shares those values but cutting conscience out of

commerce is a frightening prospect for business

owners, employees, and customers. Customers expect

businesses to operate with honesty and integrity.

CADA compels Petitioner to hide her convictions. No

American should ever have to choose between

22

allegiance to the state and faithfulness to God just to

remain in business. Conscientious objector claims are

“very close to the core of religious liberty.” Nora

O’Callaghan, Lessons From Pharaoh and the Hebrew

Midwives: Conscientious Objection to State Mandates

as a Free Exercise Right, 39 Creighton L. Rev. 561, 565,

611, 615-616 (2006). “No person can be punished for

entertaining or professing religious beliefs or

disbeliefs . . . .” Everson v. Bd. of Educ. of Ewing, 330

U.S. 1, 15-16 (1947). The government may not

“exclude[] a person from a profession or punish[] him

solely . . . because he holds certain beliefs.” Baird v.

State Bar of Arizona, 401 U.S. 1, 6 (1971); see also

Keyishian v. Bd. of Regents, 385 U.S. 589, 607 (1967)

(professor).

This Court has a “duty to guard and respect that

sphere of inviolable conscience and belief which is the

mark of a free people.” Lee v. Weisman, 505 U.S. 577,

592 (1992). The Framers intentionally protected “the

integrity of individual conscience in religious matters.”

McCreary County, KY v. ACLU, 545 U.S. 844, 876

(2005). Rights of free speech and religion “are not

limited to soft murmurings behind the doors of a

person’s home or church, or private conversations with

like-minded friends and family.” B&N, 448 P.3d at 895.

On the contrary, the Constitution guarantees the right

to free expression in the public square, including “the

right to create and sell words, paintings, and art that

express a person’s sincere religious beliefs.” Id.

23

IV.

CADA CRUSHES DISSENT, CREATING

INTOLERANCE,

UNIFORMITY,

EXCLUSION, AND INEQUALITY.

Many believe that anti-discrimination laws like

CADA are necessary to achieve tolerance, diversity,

inclusion, and equality for the LGBT community.

Properly understood and applied, these values

facilitate life in a free society and protect the rights of

all Americans. But instead of eradicating invidious

discrimination, CADA creates it—crushing dissent and

promoting intolerance, uniformity, exclusion, and

inequality. CADA destroys diversity by demanding

uniformity of thought, belief, speech, and action

concerning the nature of marriage, silencing one side of

this hotly contested issue. Colorado cements

intolerance into state law. The result is an

unconscionable inequality where people who hold

traditional marriage beliefs are excluded from offering

creative services to the public. CADA imposes a burden

even more onerous than the compelled speech in

Wooley v. Maynard, 430 U.S. 705 (1977). In Wooley, the

state designed and created the license plate its citizens

had to display. Here, Petitioner must design and create

expression that communicates a celebratory message

she believes is false. This is anathema to the First

Amendment. “Forcing free and independent individuals

to endorse ideas they find objectionable is always

demeaning.” Janus, 138 S. Ct. at 2464. The Tenth

Circuit’s decision is the “worst of all” possible speech

violations—”a viewpoint-based compulsion to speak on

politics or religion.” CNP, 479 F.Supp. at 555.

24

Obergefell has led to brazen efforts to coerce

uniformity of thought and punish dissenting views.

Colorado contravenes “[t]he very purpose of the First

Amendment . . . to foreclose public authority from

assuming a guardianship of the public mind through

regulating the press, speech, and religion.” Thomas v.

Collins, 323 U.S. 516, 545 (1945) (Jackson, J.,

concurring). This is dangerous to a free society where

the government must respect a wide range of diverse

viewpoints “Struggles to coerce uniformity” of thought

are ultimately futile, “achiev[ing] only the unanimity of

the graveyard.” Barnette, 319 U.S. at 640, 641.

The freedom of thought that undergirds the First

Amendment merits “unqualified attachment.”

Schneiderman v. United States, 320 U.S. 118, 144

(1943). In this context, the distinction between

compelled speech and compelled silence is “without

constitutional significance.” Riley v. Nat’l Fed’n of the

Blind of N.C., Inc., 487 U.S. 781, 796 (1988). These

complementary rights are components of “individual

freedom of mind.” Barnette, 319 U.S. at 637. Freedom

of thought “is the matrix, the indispensable condition,

of nearly every other form of freedom.” Palko v.

Connecticut, 302 U.S. 319, 326-27 (1937)), overruled on

other grounds by Benton v. Maryland, 395 U.S. 784

(1969). Like many past cases, this case implicates a

state law that “forces an individual . . . to be an

instrument for fostering public adherence to an

ideological point of view [s]he finds unacceptable.”

Wooley, 430 U.S. at 715; B&N, 448 P.3d at 904-905.

The ideological coercion of public opinion “is not

forward thinking.” Nat’l Inst. of Family & Life

25

Advocates v. Becerra, 138 S. Ct. 2361, 2379 (2018)

(Kennedy, J., concurring).

Compelled speech is even more damaging than

compelled silence because it coerces “free and

independent” individuals “into betraying their

convictions.” B&N, 448 P.3d at 924, quoting Janus, 138

S. Ct. at 2464. In recent cases with issues comparable

to this Petition, the Eighth Circuit, the Arizona

Supreme Court, and a United States District Court in

Kentucky have all supported creative professionals:

TMG, 936 F.3d at 752-53 (wedding videos); B&N, 448

P.3d at 914 (wedding invitations); CNP, 479 F.Supp. at

558 (photography). The Arizona Supreme Court cited

Justice Jackson’s warning in Barnette about the

ultimate futility of “government efforts to compel

uniformity of beliefs and ideas.” B&N, 448 P.3d at 896897. “Those who begin coercive elimination of dissent

soon find themselves exterminating dissenters.”

Barnette, 319 U.S. at 641. “It appears that the path to

‘coercive elimination of dissent’ is steep—and short.”

303 Creative, 6 F.4th at 1200 (Tymkovich, C.J.,

dissenting), quoting Barnette, 319 U.S. at 641.

26

CONCLUSION

This Court should grant the Petition and reverse

the Tenth Circuit ruling.

Respectfully submitted,

TAMI FITZGERALD

DEBORAH J. DEWART

THE INSTITUTE FOR FAITH Counsel of Record

ATTORNEY AT LAW

AND FAMILY

111 Magnolia Lane

9650 Strickland Road

Hubert, NC 28539

Suite 103-222

(910) 326-4554

Raleigh, NC 27615

lawyerdeborah@outlook.com

(980) 404-2880

tfitzgerald@ncvalues.org

Counsel for Amici Curiae