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

Supreme Court briefJun 2, 2022

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NO. 21-476

IN THE

Supreme Court of the United States

303 CREATIVE LLC, A LIMITED LIABILITY

COMPANY; and LORIE SMITH,

Petitioners,

AUBREY ELENIS; CHARLES GARCIA; AJAY MENON;

MIGUEL RENE ELIAS; RICHARD LEWIS; KENDRA

ANDERSON; SERGIO CORDOVA; JESSICA POCOCK; and

PHIL WEISER,

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the Tenth Circuit

BRIEF OF 15 FAMILY POLICY

ORGANIZATIONS AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

DAVID FRENCH

Counsel of Record

1020 19TH STREET NW

SUITE 875

WASHINGTON, D.C. 20036

931-446-7572

David@TheDispatch.com

Counsel for Amici Curiae

QUESTION PRESENTED

Whether applying a public-accommodation law to

compel an artist to speak or stay silent violates the

Free Speech Clause of the First Amendment.

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

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

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

SUMMARY OF THE ARGUMENT ........................... 2

ARGUMENT .............................................................. 5

If Freedom of Conscience Can Survive the

War for Western Civilization, It Can

Survive the Culture War. .................................... 5

II. Corporations and Creative Professionals

Consistently Exercise Their Rights under

Barnette to Promote and Disassociate from

Specific Values and Messages. .......................... 13

III. To Undermine Barnette Is To Cruelly

Impoverish the Marketplace of Ideas. .............. 18

CONCLUSION ......................................................... 21

iii

TABLE OF AUTHORITIES

Cases

Masterpiece Cakeshop Ltd. v. Colorado Civil

Rights Commission,

138 S. Ct. 1719 (2018)........................................ 10

Obergefell v. Hodges,

135 S. Ct. 2584 (2015). ................................. 12, 22

West Virginia State Board of Education v.

Barnette,

319 U.S. 624 (1943). ............................. 3, 7, 9, 10

Other Authorities

Allyn Vannoy, Expanding the Size of the U.S.

Military in World War II, Warfare History

Network (June 26, 2017),

http://warfarehistorynetwork.com/daily/wwii/

expanding-thesize-of-the-u-s-military-inworld-war-ii/. ........................................................ 8

Bill Chappell, “MLB Moves All-Star Game To

Colorado Amid Uproar Over Georgia

Voting Law,” NPR (April 6, 2021),

https://www.npr.org/2021/04/06/98471188

1/mlb-moves-all-star-game-to-coloradoamid-uproar-over-georgia-voting-law. .............. 15

Psalm 137:1-3 (KJV) ................................................ 19

Psalm 137:5-6 (KJV). ............................................... 19

Robin Givhan, “Should designers dress

Melania and Ivanka? The question is more

complex than it seems,” The Washington

Post, (Jan. 12, 2017),

https://www.washingtonpost.com/

news/artsandentertainment/wp/2017/01/12/shoulddesigners-dressmelania-and-ivanka-thequestion-is-more-complex-than-it. .................... 16

Stephen Daggett, Costs of Major U.S. Wars,

Congressional Research Service (June 29,

2010),

https://fas.org/sgp/crs/natsec/RS22926.pdf. ........ 8

Ted Johnson, “Disney, Marvel to Boycott

Georgia if Religious Liberty Bill is

Passed,” Variety, (Mar. 23, 2016),

http://variety.com/2016/biz/news/disneymarvel-boycott-georgiaanti-gay-bill1201737405/. ...................................................... 14

Timothy Cook, CEO, Apple, Address at the

Newseum’s 2017 Free Expression Awards

Ceremony (April 18, 2017) (transcript and

video available at

https://www.cspan.org/video/?4271271/newseum-presents-2017-freeexpressionawards). .............................................................. 21

Tommy Tomlinson, “How the NFL Helped Kill

Arizona’s Anti-Gay Rights Bill,” Forbes,

(Feb. 27, 2014),

https://www.forbes.com/sites/tommytomlin

son/2014/02/27/arizona-gay-rights-andthe-super-bowl/#1dd14455214c. ........................ 14

Tony Romm and Elizabeth Dwoskin, “Trump

banned from Facebook indefinitely, CEO

Mark Zuckerberg Says,” The Washington

Post (January 7, 2021),

https://www.washingtonpost.com/technolo

gy/2021/01/07/trump-twitter-ban/. .................... 13

Twitter, “Permanent suspension of

@realDonaldTrump,” (January 8, 2021),

https://blog.twitter.com/en_us/topics/

company/2020/suspension. ................................ 13

INTEREST OF AMICI CURIAE 1

The 15 family policy councils and policy alliance

listed below each work within their respective states

to preserve religious liberty and rights of conscience

from state overreach and government intrusion. They

are nonprofits who advocate for the nation’s first

liberty – religious freedom – in courts, legislatures,

governor’s mansions, and in the court of public

opinion. They are vitally concerned that the decision

of the court below undermines a constitutional

firewall against compelled speech and will drive from

the marketplace creative professionals who dissent

from state-mandated orthodoxy on matters of

“politics, nationalism, religion, or other matters of

opinion.” The complete list follows:

Alaska Family Action, Arkansas Family Council,

California Family Council, Hawaii Family Forum, the

Center for Arizona Policy, The FAMiLY LEADER,

Kansas Family Voice, Christian Civic League of

Maine, Michigan Family Forum, Minnesota Family

Council, Family Policy Alliance of NJ, North Dakota

Family Alliance, Palmetto Family Council, Wisconsin

Family Action, and Family Policy Alliance of

Wyoming.

1 No counsel for a party authored this brief in whole or in part,

and no person other than amici and their counsel made any

monetary contribution intended to fund the preparation or

submission of this brief. Petitioners and Respondents have

submitted blanket consents to the filing of amicus briefs in case.

Both are reflected on the Court’s docket.

SUMMARY OF THE ARGUMENT

This case comes to the court at a critical moment.

There is an increasing collision between generationslong consistent protection of the First Amendment in

this Court and a culture that increasingly yields to

the impulse to dominate political opponents, censor

their expression, and even compel them to host speech

or engage in speech with which they disagree.

It is one thing if the pressure to conform remains

cultural rather than legal. While online attacks are

difficult to endure, one can persevere and still speak.

While peer shame can sting, only a small amount of

courage is required to preserve one’s public voice.

State censorship and compulsions, however, are

different matters altogether. It is the state that wields

the power of the sword. It is the state that can bar

entrance into the marketplace of ideas. It is the state

that can dictate whether a citizen can open a business

or earn a living. Thus, it is the state that is the eternal

threat to liberty. Only the state can truly suppress the

American idea.

The First Amendment thus erects a high wall

around private speech and individual conscience. It

does not ask if speech is wise, good, popular, or

fashionable before it grants its protection. Popular

speech does not need a constitutional shield. It is the

dissenter who truly values the First Amendment, and

it is for the dissenter that the First Amendment

exists.

In this case, there is no real question that the

petitioner, Lorie Smith, is engaged in speech. She’s a

graphic artist, and the court below clearly and

unequivocally stated that her “creation of wedding

websites was pure speech.” Instead, the question is

when and whether a state’s nondiscrimination law

can overpower Ms. Smith’s rights of conscience and

force her to say things she does not believe.

Consequently, at issue in this case is nothing less

than perhaps this Court’s most enduring and potent

constitutional clarion call, issued in the depths of the

worst war this world has ever seen, that “[i]f there is

any fixed star in our constitutional constellation, it is

that no official, high or petty, can prescribe what shall

be orthodox in politics, nationalism, religion, or other

matters of opinion, or force citizens to confess by word

or act their faith therein.” W. Va. State Bd. of Educ.

v. Barnette, 319 U.S. 624, 642 (1943).

It is this call that has for generations helped

preserve the American conscience, limited the reach

of the American government, and cultivated the

robust diversity of American expression. It is this call

that has clearly and plainly stated that the state

bears the most difficult of all burdens to justify

overcoming the human will, imposing itself on the

human conscience, and forcing human beings to

express things that they do not believe. If war could

not justify such an action, can a peacetime change in

sexual morality?

The facts in this case are simple and clear. A

graphic artist has determined that she must not,

consistent with the tenets of her faith, use her artistic

talents to design and create websites that advance or

celebrate ideas she does not believe.

For this artist, a same-sex union does not

represent God’s plan for marriage, and it is thus

wrong for her to lend her talents to celebrate a union

that her religious beliefs reject. She does not refuse to

serve gay customers. She only refuses to use her

talents to celebrate or transmit messages that she

finds morally objectionable.

She applies the same standards to customers gay

and straight, white and black. No person, of any

identity, should compel her to speak. The transaction

between artist and customer should be what tradition

and the Constitution dictate, a match between a

patron and a willing creator.

As this brief will demonstrate, artists

instinctively understand that they are not and should

not be automatons, with their creative energies at the

employ of the highest or first bidder, regardless of the

message. Liberties forged in the worst days of the

deadliest war should easily survive the easy days of a

long peace.

This brief will relate stories of artists who refused

to use their talents to promote people or messages

they reject. But it will also go beyond, illustrating how

corporations now view the decision to do business

itself as a political act, granting or withholding

economic opportunity on the basis of the rights of

conscience of their leaders, employees, and

shareholders. In each case, the artist, the CEO, and

shareholder are exercising the right guaranteed by

Barnette, to be free of any obligation to express

support for a cause they despise.

This Court decided Barnette in a moment of

ultimate national crisis, before the tide had fully

turned in a war not just for national survival but for

the survival of liberty itself. It allowed boys and girls

to opt out of a pledge of national loyalty, a pledge that

simply declared that we were in this great struggle

together, united as one nation. It allowed people of

faith to shock the conscience and wound the dignity of

their friends and neighbors by standing apart from

the prevailing national will.

Surely, if this Court can decide Barnette when a

nation’s very survival is at stake, it can reaffirm its

central principle when rights of conscience collide

with hurt feelings and personal convenience. The

choice isn’t between art or conscience. Same-sex

couples can choose from an abundance of graphic

designers. Instead, reaffirming Barnette means our

citizens can enjoy art and conscience. Let the patron

find a willing creator, and let the unwilling artist keep

her conscience clean.

ARGUMENT

If Freedom of Conscience Can Survive the

War for Western Civilization, It Can Survive

the Culture War.

Follow modern American political rhetoric, and

one will find that hyperbole, exaggeration, and

outrage are the order of the day. Seemingly every

week our nation confronts a new “constitutional

crisis” or “existential threat.” But we should be clear,

not every cry of “wolf” is false. There are true

emergencies. There really are times when a nation

stares into the abyss.

Even amateur students of history can think of our

nation’s most perilous moments. There’s August 29,

1776, when General George Washington narrowly

escaped the destruction of the young Continental

Army when it slipped out of William Howe’s grasp

after defeat at the Battle of Long Island.

Who can forget July 3, 1863, Pickett’s Charge,

and the highwater mark of the Confederacy. The

Battle of Gettysburg hung in the balance, and with it

–arguably – the fate of the Union itself.

But there are other, later dates – like December

7, 1941, and the days and weeks that followed.

American arms faced historic defeat after historic

defeat. The bulk of the surface striking power of the

Pacific Fleet was immobilized in the smoking ruin of

Pearl Harbor. Japanese air, naval, and ground forces

struck American possessions abroad with impunity,

inflicting staggering defeat after staggering defeat.

Hitler’s submarines roamed the Atlantic at will,

inflicting terrible losses and slowly strangling our

English allies. Hope was in short supply.

January 7, 1942, marked the beginning of the

Bataan Campaign, arguably the lowest point for

American arms in the history of our nation. American

and Philippine forces, under the command of Douglas

MacArthur made a fighting retreat to the Bataan

Peninsula on the island of Luzon. There, more than

100,000 allied forces stood against the invading

Japanese. Over the next three months, they were

ground into the dust, and when defeat finally came, it

was capped off with the humiliating, deadly Bataan

Death March – a moment that lives in its own unique

infamy.

These were dark times. Casualty counts were

staggering, and rumors of Japanese invasion caused

immense fear on the west coast. In Europe, Hitler’s

empire was arguably at its apogee. Britain still stood,

but Nazi Germany dominated Western Europe,

Eastern Europe, and a vast swathe of the Soviet

Union. The Soviets had yet to inflict their staggering

defeat on the Wehrmacht at Stalingrad. The fate of

the world hung in the balance.

Thus, is it any wonder that on January 9, 1942,

the West Virginia Board of Education adopted a

resolution declaring that a salute to the flag be “a

regular part of the program of activities in the public

schools?” Barnette, 319 U.S. at 626. The Board

required a “stiff-arm” salute, with the student raising

his or her right hand, palm up, and repeating the

Pledge of Allegiance. Failure to do so was an act of

“insubordination” that could lead to expulsion. Id. at

628-629.

And why not? The nation was rallying for war:

“All recruiting records of the nation’s armed forces

were shattered … as thousands of men attempted to

enlist for combat duty in the Army, Navy, Marine

Corps or Coast Guard,” reported the New York Times

on Dec. 10, 1941. At the height of the Second World

War, fully 37.5 percent of total national gross

domestic product was dedicated to the war effort, an

amount more than triple that dedicated to the Civil

War and more than double that dedicated to World

War I. On July 1, 1939, the Army’s strength was

limited to 174,000 men. 2 By the end of 1945,

approximately 16 million Americans had served

under arms. 3

With fathers marching off to war and the nation

preparing for a level of loss and sacrifice not seen

since the Civil War, Americans craved tangible

evidence that we were all in this together. What

would sons and daughters of soldiers think if their

classmates didn’t stand beside them? When students

sat down, didn’t that mean they’d refuse the call if and

when it came time to take their own turn in the line

of battle? If there was ever a compelling need for

national unity, wasn’t it in January 1942? Surely, the

overwhelming weight of popular opinion was

decidedly against any who might object.

It is in this most intense atmosphere that this

Court issued one of its most stirring calls not for

ideological uniformity, but – critically – for

constitutional fidelity. Just before the famous “fixed

star” statement quoted in the introduction above,

Stephen Daggett, Costs of Major U.S. Wars, Congressional

Research

Service

(June

29,

2010),

https://fas.org/sgp/crs/natsec/RS22926.pdf.

3 Allyn Vannoy, Expanding the Size of the U.S. Military in World

War II, Warfare History Network (June 26, 2017),

http://warfarehistorynetwork.com/daily/wwii/expanding-thesizeof-the-u-s-military-in-world-war-ii/.

Justice Jackson – writing for a six-Justice majority –

wrote words every bit as meaningful and just as

applicable to the present dispute:

Nevertheless, we apply the limitations of the

Constitution with no fear that freedom to be

intellectually and spiritually diverse or even

contrary will disintegrate the social

organization. To believe that patriotism will

not flourish if patriotic ceremonies are

voluntary and spontaneous, instead of a

compulsory routine, is to make an

unflattering estimate of the appeal of our

institutions to free minds. We can have

intellectual individualism and the rich

cultural diversities that we owe to exceptional

minds only at the price of occasional

eccentricity and abnormal attitudes. When

they are so harmless to others or to the State

as those we deal with here, the price is not too

great. But freedom to differ is not limited to

things that do not matter much. That would

be a mere shadow of freedom. The test of its

substance is the right to differ as to things

that touch the heart of the existing order.

319 U.S. at 641-642.

Note the key words: “[The] freedom to differ is not

limited to things that do not matter much.” Id.

National unity matters in war. Marriage matters to

the vast majority of men and women. The test of the

substance of the First Amendment is “the right to

differ as to things that touch the heart of the existing

order.” Id. In other words, are we free to disagree even

when matters are important? Are we free to disagree

even when lives are at stake?

Emerging from the Barnette precedent wasn’t a

narrow ruling that no man can be required to pledge

allegiance to the flag, but rather a far more sweeping

precedent – one that has resonated so strongly that it

has laid down a nearly iron-clad principle: The

government may not compel speech in support of even

the most virtuous and well-meaning of causes.

In Barnette, those who argued for the compulsory

pledge quoted Abraham Lincoln, “Must a government

of necessity be too strong for the liberties of its people,

or too weak to maintain its own existence?” Id. at 636.

Yet even in time of war, the Court held that to be a

false choice. Justice Jackson wisely wrote,

“Government of limited power need not be anemic

government. Assurance that rights are secure tends

to diminish fear and jealousy of strong government,

and, by making us feel safe to live under it, makes for

its better support.” Id.

The threats to our national existence pale in

comparison to the age of Barnette. Now the “danger”

isn’t disunity in the face of a vicious enemy but rather

disappointment in the face of a reluctant artist. The

“danger” is merely a slightly longer Google search as

a patron finds a willing graphic designer. For the sake

of preventing inconvenience and disappointment is

the Court willing to gut one of its greatest precedents?

And make no mistake, a ruling against

petitioners would gut Barnette. As a direct contrast to

Masterpiece Cakeshop Ltd. v. Colorado Civil Rights

Commission, 138 S. Ct. 1719 (2018), there is no viable

dispute that the petitioners are engaged in anything

other than “pure speech.” Designing a website is an

unquestioned act of artistry, one that includes not just

the creation of visual arts, but also the creation and

placement of prose on a virtual page.

Nor does the fact that petitioners sell their artistic

services for profit vitiate their First Amendment

interests. Must painters paint any picture their

customers demand? Must writers write anything

their clients require?

Moreover, who can doubt the significance of the

speech at issue in this case? Sacramental in

Catholicism, sacred in Protestantism, holy in

religions the world over, and precious beyond words

for the nation’s secular citizens, the marriage

ceremony isn’t just the dry and formalistic signing of

a civil contract but rather a signal moment in a

human life.

Critically, while it is vitally important for all

participants, it does not mean the same things for

each of them. For Mormons, for example, a marriage

is an eternal bond, sealing man and woman together

in this life and the next. For most orthodox Christians,

it’s a once-in-a-lifetime relationship, so special that

any subsequent marriages are inherently morally

suspect unless there are specific, defined grounds for

divorce or annulment.

It is for this reason, among others, that the state

cannot, must not, compel any individual to speak in

or in support of a wedding ceremony. To do so is an

imposition on the human conscience every bit as

grotesque and intrusive as a requirement that an

individual blaspheme their own faith or pledge loyalty

to a nation above their god.

Seven years ago in Obergefell v. Hodges, Justice

Kennedy wrote at great length about the meaning and

importance of marriage, memorably declaring:

From their beginning to their most recent

page, the annals of human history reveal the

transcendent importance of marriage. The

lifelong union of a man and a woman always

has promised nobility and dignity to all

persons, without regard to their station in life.

Marriage is sacred to those who live by their

religions and offers unique fulfillment to

those who find meaning in the secular realm.

Its dynamic allows two people to find a life

that could not be found alone, for a marriage

becomes greater than just the two persons.

Rising from the most basic human needs,

marriage is essential to our most profound

hopes and aspirations.

135 S. Ct. 2584, 2593-94 (2015).

When an artist creates a website to celebrate a

marriage, then, she is creating a work of art dedicated

in its own way to the “transcendent importance” of the

union of her patrons. Must she be required, however,

to dedicate herself to honoring all marriages the state

deems lawful? Must she delegate the determinations

of her faith and her conscience to state officials who

now purport to re-define what is to her a holy and

sacred covenant?

To override Ms. Smith’s rights of conscience and

force her to create would send an earthquake through

American free speech doctrine. It would immediately

cast into doubt the ability of artists, citizens, and

corporations to choose the messages they want to

send, a choice that they’ve long exercised to express

their core values. It is to those choices we now turn.

II. Corporations and Creative Professionals

Consistently Exercise Their Rights under

Barnette to Promote and Disassociate from

Specific Values and Messages.

In the immediate aftermath of the Capitol riot on

January 6, 2021, two of the largest and most powerful

multinational communications companies in the

world exercised their rights of conscience. On January

7, 2021, Facebook indefinitely suspended the

president of the United States, Donald Trump, from

its platform. 4 The next day, Twitter announced the

permanent suspension of President Trump’s personal

account, @realDonaldTrump. 5

Tony Romm and Elizabeth Dwoskin, “Trump banned from

Facebook indefinitely, CEO Mark Zuckerberg Says,” The

Washington

Post

(January

2021),

https://www.

washingtonpost.com/technology/2021/01/07/trump-twitter-ban/.

Twitter, “Permanent suspension of @realDonaldTrump,”

(January

2021),

https://blog.twitter.com/en_us/topics/

company/2020/suspension.

These companies suspended the president not

because of his identity, but because of his message.

Even though they were in the business of

transmitting and reproducing the thoughts and ideas

of others, they still drew lines. There was expression

they could not transmit. There were ideas they would

not communicate.

Such corporate acts of conscience are hardly

unusual in the present age. They’ve in fact become so

routine that one hardly knows where to start in

detailing and describing all the ways in which

American citizens use the companies they own or

control to express and defend their most fundamental

values.

The National Football League’s corporate threat

to move the Super Bowl was instrumental in

persuading then-Arizona governor Jan Brewer to veto

a state Religious Freedom Restoration Act. 6 When

Georgia considered its own Religious Freedom

Restoration Act, Walt Disney placed immense

pressure on the state, threatening to pull filming from

its Pinewood Studios outside Atlanta. 7

6 Tommy Tomlinson, “How the NFL Helped Kill Arizona’s Anti-

Gay Rights Bill,” Forbes, (Feb. 27, 2014), https://www.forbes.

com/sites/tommytomlinson/2014/02/27/arizona-gay-rights-andthe-super-bowl/#1dd14455214c.

7 Ted Johnson, “Disney, Marvel to Boycott Georgia if Religious

Liberty Bill is Passed,” Variety, (Mar. 23, 2016),

http://variety.com/2016/biz/news/disney-marvel-boycottgeorgiaanti-gay-bill-1201737405/.

Such expression can be deeply contentious–even

hurtful–to Americans with differing views. For

example, Major League Baseball’s decision to move its

all-star game from Georgia to Colorado 8 to protest

Georgia’s voting reforms inflicted real economic harm

on individuals who had nothing to do with state

politics, or who even potentially shared Major League

Baseball’s opposition to Georgia’s reforms.

Creative professionals routinely express their

politics in their art—through the art they choose or

refuse to create. Famously, for example, shortly after

the election of Donald Trump, a number of fashion

designers (artists, to be sure) declared that they

would, under no circumstances, “dress” Melania or

Ivanka Trump –this despite the fact that dresses

themselves rarely (if ever) contain a political or

cultural message as explicit as the words or image a

web designer creates. Merely doing business with the

Trumps was an intolerable notion to creative

professionals who abhorred the Trump family's

political methods and messages.

In an open letter rejecting the idea of working

with the Trumps, designer Sophie Theallet said, “We

value our artistic freedom, and always humbly seek

to contribute to a more humane, conscious, and

ethical way to create in this world.” She said, “As an

independent fashion brand, we consider our voice an

8 Bill Chappell, “MLB Moves All-Star Game To Colorado Amid

Uproar Over Georgia Voting Law,” NPR (April 6, 2021),

https://www.npr.org/2021/04/06/984711881/mlb-moves-all-stargame-to-colorado-amid-uproar-over-georgia-voting-law.

expression of our artistic and philosophical ideas.” 9

And another designer, Naeem Khan, asserted: “A

designer is an artist, and should have the choice of

who they want to dress or not.” 10

In reporting on the designer choices, the

Washington Post’s Robin Givhan explained well how

artists view their work:

Like other creative individuals, Theallet sees

fashion as a way of expressing her views

about beauty and the way women are

perceived in society. Fashion is her tool for

communicating her world vision. In the same

way that a poet’s words or a musician’s lyrics

are a deeply personal reflection of the person

who wrote them, a fashion designer’s work

can be equally as intimate. In many ways, it’s

why we are drawn to them. We feel a one-to

one connection.

Givhan, supra n. 9.

A web designer’s work is similarly intimate. The

creation of a website, from pictures to prose, is the

9 Robin Givhan, “Should designers dress Melania and Ivanka?

The question is more complex than it seems,” The Washington

Post, (Jan. 12, 2017), https://www.washingtonpost.com/

news/artsand-entertainment/wp/2017/01/12/should-designersdressmelania-and-ivanka-the-question-is-more-complex-thanit.

10 Mehera Bonner, “Here’s the Growing List of Designers Who

Refuse to Dress Melania Trump,” Maria Claire (Mar. 11, 2017),

http://www.marieclaire.com/fashion/news/g4254/designerswhowont-dress-melania-trump/?slide=10.

product of a connection between designer and client.

A web designer is the painter of the information age.

They pour their creative energy into their work.

Men and women are drawn to creative

professionals across artistic media because of that

connection, but that connection does not make the

creative professional the servant of the patron or of

the state. The creative professional need not facilitate

and celebrate the patron’s message.

The fashion designers above rightly see their

creative work as expressing support for political and

moral beliefs. They also testify how dearly they hold

the right to choose the patrons with whom they will

enter into business relationships in accordance with

the uncoerced dictates of their consciences. While any

given American may find Theallet’s protest

overwrought, it is unthinkable that the state should

have the power to override her declaration of

conscience.

Indeed, the fashion designer comparison—which

many of these same amici raised before in the

Masterpiece

Cakeshop

case—is

particularly

appropriate here. In its decision below, the 10th

circuit noted that the petitioners’ artistry created

something like a “monopoly,” a market where only the

petitioners exist.

By that standard, every fashion designer is a

monopoly. Every painter. Every poet. Each one

designs, paints and writes in a manner that is utterly

unique to themselves. It would be perverse to hold

that the First Amendment views artistic speech as

inherently less precious and more subject to

government oversight than other forms of “pure

speech.” One can think of few doctrines bettercalculated to suppress creativity and stifle the

marketplace of ideas. The First Amendment permits

no such thing.

The creative professionals profiled above,

including the petitioners, are engaged in conduct

remarkably similar to the conduct of the stalwart

Jehovah’s Witnesses in Barnette. When asked by

others if they would participate in an act of expression

they abhor, these creative professionals say no. They

understand reality. They understand that no one

would think that Melania Trump designs her own

dresses or that couples create their own websites.

They understand that the expression involved is joint

expression with their patrons. They are lending their

unique talents to acts secular and sacred. Doing so

must be their choice.

III. To Undermine Barnette Is To Cruelly

Impoverish the Marketplace of Ideas.

If creative acts are undertaken, not by choice, but

by compulsion, do not imagine that the web designer

will be merely passively complying with the law. The

patron-artist relationship is not like a gumball

machine that mechanically dispenses a product when

payment is inserted. Quite the contrary, artistic work

done at the behest of others involves the investment

of the artist’s mind and imagination in the expression

of ideas suggested by a patron who has commissioned

the artwork. This is, indeed, the major reason why

artists are commissioned by patrons in the first place.

Artistic work involves the whole person – mind, body,

and soul. The use of the artist’s creative talents must

be undertaken willingly, or it is a violation of her

integrity.

For this reason, there is something particularly

cruel about coerced artistic expression, a cruelty

recognized even in ancient times. Indeed, the

Psalmist gives voice to the suffering of the artist

under duress:

By the rivers of Babylon, there we sat down,

yea, we wept, when we remembered Zion. We

hanged our harps upon the willows in the

midst thereof. For there they that carried us

away captive required of us a song; and they

that wasted us required of us mirth, saying,

Sing us one of the songs of Zion.

Psalm 137:1-3 (KJV).

The psalmist also viscerally describes the feeling

of inner revulsion the artist feels at the idea of

employing his artistic talents under coercion:

If I forget thee, O Jerusalem, let my right

hand forget her cunning. If I do not remember

thee, let my tongue cleave to the roof of my

mouth. . . .

Psalm 137:5-6 (KJV).

The psalmist would rather lose his ability to play

the lyre, lose his ability to sing, than employ his skill

for the schadenfreude of those who hate the city that

he loves. A similar situation is at work in this case:

The petitioners would rather go out of business than

be forced to use Ms. Smith’s skill to celebrate an idea

she does not believe. Shall the State of Colorado

become the agent of this compulsion?

In April 2017, Apple CEO Tim Cook delivered an

address to the Newseum that eloquently outlined the

nature of his company’s First Amendment rights. He

recognized that Apple not only facilitates the speech

of others, it possesses its own free speech rights in the

context of its own work:

It’s no accident that these freedoms are

enshrined and protected in the First

Amendment. They’re the foundation of so

many of our rights, which means we all have

a stake and a role in defending them. This is

a responsibility that Apple takes very

seriously. I see our work to fulfill this

responsibility as twofold. First, we work to

defend these freedoms by enabling people

around the world to speak up. And second, we

do it by speaking up ourselves, because

companies can and should have values. We

have a perspective on major public issues, and

we are prepared to take a stand for things

that we deeply believe in… a company is not

some faceless, shapeless thing that exists

apart from society. A company is a collection

of human beings, and part of the fabric of our

society. A company like ours has a culture, it

has values, and it has a voice. Apple has

spoken out, and will continue to speak out, for

what we believe as a company. And the

positions we take will continue to guide our

actions. So we will continue to speak up for

environmental protection. We will continue to

stand up for inclusion and diversity in all

facets of life. And we will continue to stand up

for human rights, including the right to

privacy. 11

Apple understands it has a First Amendment

right as a corporation to participate freely in the

shaping of public opinion, and it does this by choosing

which opinions it will express via the designs of its

products and its publicly announced partnerships.

Many large corporations go even farther. Not only

will they not create products that send unacceptable

messages, they won’t do business in places that

promulgate (to them) unacceptable laws. Yet if rights

of conscience attach to corporations worth trillions,

shouldn’t they also attach to a single artist whose

alleged “monopoly” is merely in the sweat of her own

brow? The state is demanding that an artist not only

do business with a certain patron, it’s demanding that

she create and speak the patron’s message. How could

Colorado prevail and Barnette survive?

CONCLUSION

If the state of Colorado prevails in this case,

fundamental First Amendment rights have become

fragile indeed. Prohibitions against compelled speech

survived world war and the pressure for national

11 Timothy Cook, CEO, Apple, Address at the Newseum’s 2017

Free Expression Awards Ceremony (April 18, 2017) (transcript

and video available at https://www.cspan.org/video/?4271271/newseum-presents-2017-freeexpression-awards).

unification in the face of an existential threat. Can

they survive the culture war and the political

animosity of the polarized present? That is what this

Court will decide.

It is important to remember that this Court has

clearly distinguished the constitutional right to

marry from any legal obligation to adopt the state’s

view about the nature of marriage. Writing for the

majority in Obergefell, Justice Kennedy was clear:

Finally, it must be emphasized that religions,

and those who adhere to religious doctrines,

may continue to advocate with utmost,

sincere conviction that, by divine precepts,

same-sex marriage should not be condoned.

The First Amendment ensures that religious

organizations and persons are given proper

protection as they seek to teach the principles

that are so fulfilling and so central to their

lives and faiths, and to their own deep

aspirations to continue the family structure

they have long revered.

135 S. Ct. at 2607.

This is the language that preserves the First

Amendment. This is the language that preserves

Barnette. Ms. Smith is among the many millions of

Americans who are not willing to violate “the

principles that are so fulfilling and so central to their

lives and faiths.” Or, to put it another way, they are

not willing to let any Colorado official, high or petty,

“prescribe what shall be orthodox” regarding the

institution of marriage “or force citizens to confess by

word or act their faith therein.”

May that star remain fixed in our constitutional

constellation. The judgment of the court below must

be reversed.

Respectfully submitted,