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 AND LORIE SMITH,

Petitioners,

v.

AUBREY ELENIS, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

BRIEF OF AMICUS CURIAE

ROBERT P. GEORGE

IN SUPPORT OF PETITIONERS

Edward M. Wenger

Counsel of Record

HOLTZMAN VOGEL

BARAN TORCHINSKY &

JOSEFIAK PLLC

2300 N Street, NW,Ste 643A

Washington, DC 20037

(202) 737-8808

emwenger@holtzmanvogel.com

Shawn Toomey Sheehy

Andrew Pardue

HOLTZMAN VOGEL

BARAN TORCHINSKY &

JOSEFIAK PLLC

15405 John Marshall Hwy.

Haymarket, VA 20169

(540) 341-8808

(540) 341-8809

Counsel for Amicus Curiae

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION & SUMMARY OF

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

ARGUMENT ............................................................... 3

I.

There is no legitimate or compelling

state interest in protecting citizens

from exposure to allegedly

stigmatizing ideas or concepts. ..................... 3

II. The activity at issue here is pure

speech, which is subject to a different

legal standard than mere commercial

conduct. ........................................................ 11

III. The meaning of speech is inherently

contextual, and the meaning conveyed

by Ms. Smith’s speech is substantively

different from the kinds of “dignitary

harm” combatted by publicaccommodations laws. ................................. 17

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

ii

TABLE OF AUTHORITIES

CASES

Boy Scouts of America v. Dale,

530 U.S. 640 (2000) ........................ 16, 18, 20, 21

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ............................................ 9

Citizens United v. FEC,

558 U.S. 310 (2010) ...................................... 9, 10

Cohen v. California,

403 U.S. 15 (1971) .................................. 6, 10, 22

Heart of Atl. Motel v. United States,

379 U.S. 241 (1964) .................................... 15, 19

Hurley v. Irish-American Gay, Lesbian, and

Bisexual Grp. of Boston, Inc.,

515 U.S. 557 (1995) .................................. passim

Masterpiece Cakeshop, Ltd. v. Colorado Civil

Rights Commission,

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

Matal v. Tam, 137 S. Ct. 1744 (2017) .................... 5, 6

McCutcheon v. FEC, 572 U.S. 185 (2014) .................. 7

Morse v. Frederick, 551 U.S. 393 (2007)..................... 6

National Socialist Party of Am. v. Skokie,

432 U.S. 43 (1977) .......................................... 3, 4

iii

Obergefell v. Hodges,

576 U.S. 644 (2015) .................................... 11, 12

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984) .......................................... 15

Snyder v. Phelps,

562 U.S. 443 (2011) ................................ 4, 5, 7, 8

Spence v. Washington,

418 U.S. 405 (1974) ...................................... 3, 18

Texas v. Johnson,

491 U.S. 397 (1989) .................................. passim

United States v. O'Brien,

391 U.S. 367 (1968) .................................... 12, 13

United States v. Schwimmer,

279 U.S. 644 (1929) ............................................ 5

Virginia v. Black, 583 U.S. 343 (2003) ....................... 7

West Virginia State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ...................................... 3, 14

Whitney v. California,

274 U.S. 357 (1927) .......................................... 17

OTHER AUTHORITIES

Girgis, Filling in the Blank Left by the

Masterpiece Ruling: Why Gorsuch and

Thomas Are Right, Public Discourse

(Jun. 14, 2018) ............................................ 17, 18

iv

Girgis, Nervous Victors, Illiberal Measures: A

Response to Douglas NeJaime and Reva

Siegel, 125 Yale L.J. F. 399, 406 (2016). 9, 20, 21

J. Rosseau, The Social Contract 122 (Maurice

Cranston trans., Penguin ed., 1968)

(1762) ................................................................ 21

J. Waldron, Law and Disagreement 15 (1999) ........ 22

1

INTEREST OF AMICUS CURIAE1

Robert P. George (B.A., Swarthmore College;

J.D., M.T.S., Harvard University; D.Phil., B.C.L.,

D.C.L., and D.Litt. University of Oxford) is a legal

philosopher and constitutional scholar who serves as

the McCormick Professor of Jurisprudence at

Princeton University. He has studied, written, and

taught about religious liberty, human dignity, and

First and Fourteenth Amendment jurisprudence for

decades. His academic writings include Making Men

Moral: Civil Liberties and Public Morality; The

Clash of Orthodoxies; and Conscience and Its

Enemies. Professor George routinely contributes to

litigation in which questions concerning individual

liberty and freedom of expression arise. He offers the

following to help guide the Court’s analysis in this

crucial case.

1 Pursuant

to Rule 37.3(a), both the Petitioners

and the Respondents have provided blanket consents

to the filing of amicus briefs. In accordance with

Rule 37.6, counsel affirms that no counsel for any

party authored this brief in whole or in part. The

Witherspoon Institute, Inc., is contributing to the

costs of printing this brief. No other person or entity

other than Amicus Curiae and the counsel below

contributed the costs associated with the preparation

and submission of this brief.

2

INTRODUCTION &

SUMMARY OF THE ARGUMENT

The State of Colorado, under the banner of the

Colorado Anti-Discrimination Act (CADA), seeks to

compel a religiously orthodox website designer to

offer her creative services to customers that wish to

promote events that are inconsistent with her

religious beliefs. Colorado asserts that its law does

not violate the First Amendment because its law

regulates

commercial

conduct

only—not

expression—and that any speech discernible in her

governmentally compelled conduct flows not from

her but instead from her customers. If the law does

compel speech, the State maintains that this

commandeering of her voice is justified by its

compelling need to protect persons who identify as

homosexual from exclusion from the marketplace.

The State’s argument is triply flawed.

First, States have no legitimate—much less

compelling—interest in shielding citizens from

offensive ideas conveyed by protected speech.

Second, the activity that CADA compels is indeed

speech protected by the First Amendment and

attributable to the website designer. And third, even

if Colorado is correct in categorizing Petitioners’

speech as commercial conduct subject to a more

forgiving

standard,

Ms. Smith’s

conduct

is

nevertheless

expressive

and

differs,

both

meaningfully and contextually, from the kinds of

commercial conduct that have historically been the

target of public-accommodation laws—namely the

exclusion of an entire class of persons from

participation in a particular market.

3

The arguments below find ample support in

Supreme Court precedent, and they are also rooted

in the distinct pluralistic tradition exemplified by

the broad protections of the First Amendment. The

fundamental question at stake here is one of

governmental power and trust: Do we trust the

government to appropriately identify and excise

undesirable ideas from the public square, or do we

trust individuals to work out their conflicting values

and beliefs through the free exchange of ideas—that

is, in a manner characteristic of a society premised

upon a system of ordered liberty? The latter option is

the only permissible course under our Constitution.

ARGUMENT

I.

There is no legitimate or compelling

state interest in protecting citizens

from

exposure

to

allegedly

stigmatizing ideas or concepts.

A. “If 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.” West Virginia State Bd. of Educ. v.

Barnette, 319 U.S. 624, 642 (1943). This foundational

principle protects citizens against attempts to

compel the expression of government-approved

speech. Although public officials might prefer that

citizens fly American flags rather than deface them,

see Spence v. Washington, 418 U.S. 405 (1974), or

burn them, see Texas v. Johnson, 491 U.S. 397, 399

(1989), or march in a patriotic July 4th parade

rather than a pro-Nazi parade, National Socialist

4

Party of Am. v. Skokie, 432 U.S. 43 (1977) (per

curiam), the government cannot prescribe that all

citizens adhere to only state-approved forms of

speech and expressive conduct.

The

First

Amendment’s

prohibition

on

governmental speech restrictions applies even when

the speech at issue offends other members of the

community. This Court has affirmed in a long line of

precedent that “the government may not prohibit the

expression of an idea simply because society finds

the idea itself offensive or disagreeable”; indeed, it

has deemed this concept the “bedrock principle

underlying the First Amendment.” Johnson, 491

U.S., at 413. After all, the First Amendment is rarely

invoked to defend the legality of speech that a

majority finds palatable; rather, “the point of all

speech protection . . . is to shield just those choices of

content that in someone’s eyes are misguided, or

even hurtful.” Hurley v. Irish-American Gay,

Lesbian, and Bisexual Grp. of Boston, Inc., 515 U.S.

557, 574 (1995); see also Snyder v. Phelps, 562 U.S.

443, 458 (2011) (“Such speech cannot be restricted

simply because it is upsetting or arouses contempt.”).

The need to protect a speaker’s audience either

from offense or from what the audience might regard

as insult cannot be a legitimate justification for

restricting speech. Otherwise, the state would have

vast censorship authority that would inevitably be

wielded most frequently against the types of political

and religious speech that warrant the greatest

constitutional protection. As Justice Thomas

explained in a concurring opinion joined by Justice

Gorsuch in Masterpiece Cakeshop, Ltd. v. Colorado

Civil Rights Commission, “[s]tates cannot punish

5

protected speech because some group finds it

offensive, hurtful, stigmatic, unreasonable, or

undignified. . . . A contrary rule would allow the

government to stamp out virtually any speech at

will.” 138 S. Ct. 1719, 1746 (2018) (Thomas, J.,

concurring). As a unanimous Court recently

recognized, “[g]iving offense is a viewpoint.” Matal v.

Tam, 137 S. Ct. 1744, 1763 (2017) (emphasis added).

A state “may not insulate a law from charges of

viewpoint discrimination by tying censorship to the

reaction of the speaker’s audience.” Id., at 1766

(Kennedy, J., concurring). The Constitution remains

a safer guarantor of speech rights than the whims of

public opinion (or of policymakers).

Moreover, there is no degree of offense so severe

as to constitute a legally cognizable “dignitary harm”

against the group of people offended. Speech is

protected even when it is so “particularly hurtful” to

a distinct group that “emotional distress” “fails to

capture fully” the strength of the emotions it stokes

among listeners. Snyder, 562 U.S., at 456. This is so

because it is the “proudest boast of our free speech

jurisprudence . . . that we protect the freedom to

express ‘the thought that we hate.’” Matal, 137

S. Ct., at 1764 (quoting United States v. Schwimmer,

279 U.S. 644, 655 (1929) (Holmes, J., dissenting)).

Accordingly, even when the government acts

pursuant to such unobjectionable motivations as

“encouraging racial tolerance,” it must act through

constitutionally permissible means. Id. A State may

lawfully promote its favored message “by persuasion

and example,” but the argument that “[t]he

Government has an interest in preventing speech

6

expressing ideas that offend . . . strikes at the heart

of the First Amendment.” Id. (emphasis added).

In other words, “[w]hile 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

either purpose may strike the government.” Hurley,

515 U.S., at 579. The freestanding right to avoid

offense or what one regards as insult is not and

never has been legally cognizable. The First

Amendment protects even the most offensive speech

“in the hope that use of such freedom will ultimately

produce a more capable citizenry and more perfect

polity.” Cohen v. California, 403 U.S. 15, 24 (1971).

Fundamentally, the way to promote the State’s

preferred values “is not to punish those who feel

differently about these matters. It is to persuade

them that they are wrong.” Johnson, 491 U.S., at

419. Rather than first attempt persuasion, Colorado

has opted for compulsion.

B. Although the rights to free speech and the

free exercise of religion are distinct and thus receive

separate protection under the First Amendment,

they are often intertwined. “[M]uch . . . religious

speech might be perceived as offensive to some,”

because faithful adherence to a religious tradition

implies the acceptance of certain claims about

objective truth and the concomitant rejection of

certain conduct as morally inconsistent with that

truth. Morse v. Frederick, 551 U.S. 393, 409 (2007).

In a pluralistic society in which the theologically

traditional mix freely with citizens who belong to

7

different religious traditions or no religion at all,

friction inevitably arises. The expression of

traditional religious beliefs—through speech or

conduct—is not, however, punishable by law.

As demonstrated, the Supreme Court has

consistently affirmed that the First Amendment

protects even profoundly offensive forms of

expressive conduct. See, e. g., Snyder, 562 U.S., at

447 (First Amendment protects group that picketed

a soldier’s funeral bearing signs indicating their

belief “that God kills American soldiers as

punishment” for national sins); Virginia v. Black,

583 U.S. 343, 347–348 (2003) (affirming the right of

the Ku Klux Klan to burn crosses at rallies);

Johnson, 491 U.S., at 420 (holding a “State’s interest

in preserving the [American] flag as a symbol of

nationhood and national unity” did not justify a

man’s criminal conviction for engaging in protected

political expression by burning it). Hence, when a

speaker’s message is explicit—as unmistakable in

expressive intent as a twenty-five-foot-tall burning

cross, for instance, Black, 583 U.S., at 349—it is

clearly protected by the First Amendment. But

Colorado’s argument would deny protection to far

milder forms of speech, such as an artist’s refusal to

design a product that promotes a message to which

she objects.

The Supreme Court has ruled that “the First

Amendment protects flag burning, funeral protests,

and Nazi parades.” McCutcheon v. FEC, 572 U.S.

185, 191 (2014). It would be an absurd

jurisprudential result to rule that Ms. Smith could

not, however, politely tell a couple that satisfying

their request would conflict with her deeply held

8

religious beliefs about marriage, and then direct

them to a different service provider, without

bringing the full force of Colorado law down upon

herself.

The State’s logic admits to no limiting principle.

Colorado argues that CADA prohibits only messages

that “propose[] illegal activity” and is therefore

constitutionally permissible. Brief in Opposition 33–

34. But it simultaneously claims for itself the

freestanding authority to regulate expressive

conduct that, in its view, inflicts “dignitary harm.”

See id. (comparing Petitioners’ refusal to design

products to promote same-sex ceremonies with Jim

Crow-era denials of service to African Americans in

the South). The Tenth Circuit’s opinion in the case

below showed where reasoning like this inexorably

leads. See 6 F.4th 1160, 1179 (10th Cir. 2021) (“As

compelling as Colorado’s interest in protecting the

dignitary rights of LGBT people may be, Colorado

may not enforce that interest by limiting offensive

speech. Indeed, the First Amendment protects a

wide range of arguably greater offenses to the

dignitary interests of LGBT people.”) (citing Snyder,

562 U.S., 443).

Yet even as it rides roughshod over civil liberties,

the State’s theory would do little to actually protect

people from the “dignitary harm” of hearing

traditional

beliefs

about

marriage

publicly

expressed. Religion is not a private matter.

“Religious freedom,” instead, “includes nothing if not

the rights to worship, proselytize, and convert,” all of

which imply the right to “express the conviction that

outsiders are . . . not just wrong, but deluded about

matters of cosmic importance around which they

9

have ordered their lives--even damnably wrong.”

Girgis, Nervous Victors, Illiberal Measures: A

Response to Douglas NeJaime and Reva Siegel, 125

Yale L.J. F. 399, 406 (2016) (emphasis in original).

The freedom to make such weighty and potentially

upsetting claims cannot be separated from the

religious and expressional freedoms protected by the

First Amendment. Barring believers from the

market for wedding services will not prevent their

beliefs from being voiced, to the inevitable

consternation of outsiders.

C. Even if Ms. Smith’s refusal to provide website

design services for same-sex ceremonies is deeply

upsetting, her customers’ distress would still not

justify coercion, because the dignity of both parties

would be at stake. Ms. Smith could just as easily

claim that Colorado’s attempt to commandeer her

voice inflicts a “dignitary harm” upon her. By using

its power to take from Ms. Smith the right to speak

and disseminate her ideas in the public square,

Colorado’s actions deprive Ms. Smith of “the right to

use speech to strive to establish worth, standing, and

respect” for her voice. See Citizens United v. FEC,

558 U.S. 310, 340–341 (2010); Burwell v. Hobby

Lobby Stores, Inc., 573 U.S. 682, 736 (2014)

(Kennedy, J., concurring) (“[F]ree exercise is

essential in preserving their own dignity and in

striving for a self-definition shaped by their religious

precepts.”). Accordingly, Colorado’s actions impose

“dignitary harms” on Ms. Smith.

What is a State to do in such a situation? This

Court has already supplied the answer: Nothing. In

doing nothing, the State fulfills its constitutional

duty to respect the freedom of all concerned. Because

10

the First Amendment is “premised on mistrust of

governmental power,” the government is prohibited

from depriving “the public of the right and privilege

to determine for itself what speech and speakers are

worthy of consideration.” Citizens United, 558 U.S.,

at 340–341.

Disputes between American citizens—or between

States and citizens—are not assessed in a vacuum,

but instead must be evaluated in light of “the

constitutional backdrop against which [a] decision

must be made.” Cohen, 402 U.S., at 24. Similarly,

the First Amendment itself is not a device of

unknown origin or murky motivation; rather:

[The First Amendment was] designed

and intended to remove governmental

restraints from the arena of public

discussion, putting the decision as to

what views shall be voiced largely into

the hands of each of us, in the hope that

use of such freedom will ultimately

produce a more capable citizenry and

more perfect polity and in the belief

that no other approach would comport

with the premise of individual dignity

and choice upon which our political

system rests.

Id. (emphasis added). The First Amendment is a

default setting against governmental restraints on

speech that the State can overcome only with a

compelling rationale. Allegations of “dignitary

harm,” on their own, do not suffice, particularly

when state action to remedy that “harm” only

transfers the injury to a different party.

11

II.

The activity at issue here is pure

speech, which is subject to a different

legal standard than mere commercial

conduct.

A. Colorado argues there is nothing to fear from

CADA because the law is no different in form or

function from similar federal and state antidiscrimination laws that seek only to “prevent[] the

harm, both dignitary and economic, inflicted by

denials of equal access to commercially available

goods and services.” Brief in Opposition 33. For the

reasons explained in Section I supra, the State’s

interest in preventing “dignitary harm” is

unavailing. But what of its desire to ensure equal

access to the market? This argument might succeed

if this case presented an example of discrimination

against certain people (e. g., people who experience

and affirm same-sex attraction or who form samesex relationships) as a class. Ms. Smith, however,

has never claimed such an open-ended right.

Instead, the Court’s inquiry, like Ms. Smith’s

claim, should focus on the content of the compelled

speech rather than the client for whom it is

performed. Ms. Smith would refuse to design a

website promoting a same-sex ceremony for any

customer who requested one, whether that potential

customer experienced same- or opposite-sex

attraction, because she objects to the content of the

message itself. And her objection to same-sex

partnerships is rooted in “decent and honorable

religious or philosophical premises,” beliefs which

this Court only recently claimed it would not

“disparage[].” Obergefell v. Hodges, 576 U.S. 644, 672

(2015). As the Tenth Circuit recognized, the conduct

12

implicated here is not just the exchange of services

for payment; it is First-Amendment-protected

speech. 6 F.4th, at 1176 (“Appellants’ creation of

wedding websites is pure speech.”).

Understandably, Colorado wants to recategorize

Ms. Smith’s pure speech as commercial conduct.

Brief in Opposition 24. But even under this

categorization, Colorado fails. Although the

government has “a freer hand in restricting

expressive conduct” than written or spoken forms of

speech, it cannot target particular expressive

conduct because of its “expressive elements.”

Johnson, 491 U.S., at 406. For the purposes of

constitutional analysis, governmental intent is

relevant; it matters whether the government aims

only to regulate the “nonspeech element” of a given

activity or whether it is really attempting to squelch

the expressive message conveyed thereby. United

States v. O’Brien, 391 U.S. 367, 376 (1968).

Colorado argues that here, the “nonspeech

element” is all there is, on the ground that any

speech intertwined in Ms. Smith’s refusal to design

certain websites “proposes illegal commercial

activity.” Brief in Opposition 32. As an initial

matter, Ms. Smith’s message is “illegal” only because

CADA exists in an unconstitutional form. As

demonstrated in Section I, there is a discernible (and

lawful) message here: Ms. Smith’s belief that

marriage is intended as “a gender-differentiated

union of man and woman,” a view that has long

“been held—and continues to be held—in good faith

by reasonable and sincere people here and

throughout the world.” Obergefell, 576 U.S., at 657.

13

When assessing governmental regulations of

expressive conduct, the Court has identified several

relevant factors, including whether the public

interest in regulation “is unrelated to the

suppression of free expression,” and whether “the

incidental restriction on alleged First Amendment

freedoms is no greater than is essential to the

furtherance of” the government’s interest. O’Brien,

391 U.S., at 377. Colorado argues that it seeks only

to ensure equal access to places of public

accommodation, Brief in Opposition 30, but

Ms. Smith (and most creative professionals in

similar situations) has never asserted that she

intends to deny service to any class of persons,

including those who identify as homosexual. Instead,

she seeks only to avoid a situation in which any

customer compels her to speak a message with which

she disagrees.

Hence, CADA’s restriction is clearly “greater than

is essential to the furtherance of” the government’s

interest in ensuring equal access because Ms. Smith

already offers all customers access to the same

services—services which do not include designing

websites for events of any type that violate her

religiously informed moral convictions. O’Brien, 391

U.S., at 377. Colorado’s real interest in compelling

Ms. Smith to design wedding websites that violate

her conscience is intimately related to the

suppression of free expression to which the State

objects. It is therefore impermissible.

B. The State has argued further that, even if the

design of a particular product for use in a particular

wedding implicates the freedom of speech, the only

message discernible in such an exchange is one that

14

is properly attributable to the customer rather than

the product designer. Brief in Opposition 29–31.

More specifically, Colorado asserts that “there is

little likelihood that others will identify the resulting

product as communicating the views” of Ms. Smith.

Id., at 29.

The same argument was previously raised in oral

argument before this Court in a similar case

concerning the provision of services for a same-sex

ceremony. See, e. g., Masterpiece Cakeshop Ltd. v.

Colorado Civil Rights Commission, No. 16-111, Tr.

Of Oral Arg. 15:6-7 (“A hairdo is to show off the

person, not the artist.”). Because this argument2

“would justify any law that compelled protected

speech[,] . . . this Court has never accepted it.”

Masterpiece, 138 S. Ct., at 1744 (Thomas, J.,

concurring). These cases are not about appearances;

they are about conscience—the inherent right of an

individual “to speak [her] own mind” on matters of

public concern and private belief. Barnette, 319 U.S.,

at 634.

The State, through its anti-discrimination law,

seeks to compel Ms. Smith to provide services in

support of a practice and cause which she cannot in

conscience support. It is irrelevant that the world

2 Interestingly, at the same time it advances this

argument, Colorado also expresses a concern that

Ms. Smith’s denial of wedding-website services to

same-sex couples could be misinterpreted as an

endorsement of her message by the State. See Brief

in Opposition 35. If implied endorsement is a

reasonable concern for a state entity, it is certainly a

reasonable fear for an individual.

15

may never know that Ms. Smith has violated her

own conscience because she herself will be intimately

aware of that fact. “To sustain the compulsory”

provision of website services in this case, the Court

must find that the First Amendment leaves the way

“open to public authorities to compel [Ms. Smith] to

utter what is not in [her] mind.” Id. There is no

precedent even hinting that the government has the

authority to put words in a speaker’s mouth (e. g.,

forcing an Orthodox Jewish designer to design a

website for a Jews for Jesus celebration), and plenty

of countervailing precedents that make abundantly

clear it does not.

In every case in which this Court has affirmed

the dignitary benefits of anti-discrimination law, the

law under review coerced conduct that was not

expressive. See, e. g., Heart of Atl. Motel v. United

States, 379 U.S. 241, 250 (1964); Roberts v. U.S.

Jaycees, 468 U.S. 609, 625 (1984). And conversely, in

two cases, the Court has directly addressed the

question of “dignitary harm” to persons who identify

as homosexual and found that it cannot justify state

compulsion of speech. In Hurley v. Irish-American

Gay, Lesbian, and Bisexual Group of Boston,

Massachusetts state courts found that the exclusion

of a gay-pride group from participation in an annual

parade conducted and organized by another private

group (the South Boston Allied War Veterans

Council), violated state public-accommodation law.

515 U.S., at 561–562. This Court, however, held that

the Veterans’ Council’s exclusion of the group was

constitutionally protected expression, because “one

important manifestation of the principle of free

speech is that one who chooses to speak may also

16

decide what not to say,” and the inclusion of the

group would have materially altered the content of

the parade host’s message. Id., at 573 (internal

quotations omitted). When speakers decide to voice

an opinion in public, they do not thereby open

themselves up to a governmental command that they

simultaneously voice other opinions, including

opinions contrary to their own beliefs. Outside of

requirements of truth in commercial advertising, the

State “may not compel affirmance of a belief with

which the speaker disagrees.” Id.

Similarly, in Boy Scouts of America v. Dale, 530

U.S. 640 (2000), the Court affirmed the First

Amendment associational right of a private

organization to deny membership to a man because

his advocacy of homosexual causes conflicted with

the values that the Boy Scouts intended to impart to

their members. Relying upon Hurley, the Court

noted that permitting anyone to join a private

organization without respecting the organization’s

values would allow the group’s overall message to

“be shaped by all those protected by the law who

wish to join in with some expressive demonstration

of their own.” Id., at 658 (quoting Hurley, 515 U.S.,

at 572–573).

Distilled to their essence, this Court’s decisions

have upheld public-accommodations laws that target

discriminatory acts “against individuals in the

provision of publicly available goods, privileges, and

services.” Hurley, 515 U.S., at 572. It has stricken

laws that “target speech or discriminate on the basis

of its content.” Id. CADA plainly falls into the latter

category.

17

Requiring Ms. Smith to provide website design

services for same-sex ceremonies would similarly

deform the content of her intended message by

allowing it to be substituted for the desired message

of others. If the First Amendment “eschew[s] silence

coerced by law—the argument of force in its worst

form,” Whitney v. California, 274 U.S. 357, 275

(1927), then it certainly prohibits speech coerced by

law as well.

Ms. Smith’s desire to provide services in the

marketplace, and to control her own speech in a

manner consistent with her religious beliefs, “is as

sound as [her speech] is expressive.” Hurley, 515

U.S., at 574. It is also a message conveyed in her

own voice, which cannot be lawfully commandeered

by the voice of another backed by the power of the

state. In holding otherwise, the Tenth Circuit erred.

III.

The meaning of speech is inherently

contextual, and the meaning conveyed

by Ms. Smith’s speech is substantively

different from the kinds of “dignitary

harm”

combatted

by

publicaccommodations laws.

Having established that (1) there is no state

interest in eliminating offensive ideas from the

public square, (2) Ms. Smith’s website designs

constitute pure speech under the First Amendment,

and (3) even under Colorado’s theory Ms. Smith’s

designs constitute expressive conduct, the next

question is the nature of the message conveyed by

Ms. Smith’s speech. The inquiry into “whether and

how an expressive item’s purpose and context

determine the message it carries” is, in many

18

respects, the central question in free-speech law.

Girgis, Filling in the Blank Left by the Masterpiece

Ruling: Why Gorsuch and Thomas Are Right, Public

Discourse

(Jun.

14,

2018),

https://www.thepublicdiscourse.com/

2018/06/21831/. The Court has long held that “the

context in which a symbol is used for purposes of

expression is important, for the context may give

meaning to the symbol.” Spence, 418 U.S., at 410.3

Here, the context is illustrative: Ms. Smith operates

a website-design business, and the websites that the

State seeks to compel her to create would promote a

ceremony celebrating a union between two

individuals of the same sex.

In First Amendment cases, “the ultimate

conclusions of law are virtually inseparable from

findings of fact.” Boy Scouts, 530 U.S., at 648. The

relevant facts here are not disputed by Colorado:

Ms. Smith “offers graphic and website design

services to the public,” and she “would like to expand

the business” to offer wedding websites. Brief in

Opposition 5. But she “would decline any request

[she] received from a same-sex couple to design a

wedding website,” and she fears this would subject

her to legal penalties under CADA. Id.

“Forcing [Ms. Smith] to make custom wedding

[websites] for same-sex marriages requires [her] to,

3 See

also Masterpiece, 138 S. Ct., at 1744

(Thomas, J., concurring) (“The meaning of expressive

conduct, this Court has explained, depends on ‘the

context in which it occur[s].’” (quoting Johnson, 491

U.S., at 405)).

19

at the very least, acknowledge that same-sex

weddings are ‘weddings’ and suggest that they

should be celebrated—the precise messages [she]

believes [her] faith forbids.” Masterpiece, 138 S. Ct.,

at 1744 (Thomas, J., concurring). Even the

dissenting Justices in Masterpiece acknowledged

that the meaning of a particular symbol is contextdependent, and that a couple who seeks to purchase

a particular wedding-related product are requesting

a product “celebrating their wedding—not a

[product] celebrating heterosexual weddings or

same-sex weddings.” Id., at 1750 (Ginsburg, J.,

dissenting) (emphasis in original). Compulsion in

this case would require Ms. Smith to “affirm[] a

belief with which [she] disagrees,” an outcome that

the First Amendment forbids. Hurley, 515 U.S., at

573.

The State’s argument to the contrary relies upon

a mistaken assumption about the purpose of antidiscrimination law. A comparison to the situation in

the Jim Crow South is illustrative. Under that legal

regime, African Americans were routinely denied

service in places of public accommodation because of

their skin color. The Civil Rights Act of 1964 sought

to remedy that specific harm by outlawing a

particular form of conduct—“denials of equal access

to public establishments”—and barred race-based

discrimination “to vindicate the deprivation of

personal dignity” that African Americans suffered

when denied service on an equal basis with whites.

Heart of Atl. Motel, 379 U.S., at 250 (internal

quotations omitted).

In other words, the Civil Rights Act aimed to

“fight the peculiar social harm that results from

20

being excluded from the public square.” Girgis,

supra, 125 Yale L.J. F., at 412 (emphasis in

original). Because the exclusion of certain groups

from public life “doesn’t serve civil society; it

depopulates it,” the federal government was justified

in “fight[ing] racial humiliation by integrating

schools, restaurants, theaters, and inns.” Id. But

“[a]s the definition of ‘public accommodation’ has

expanded from clearly commercial entities, such as

restaurants, bars, and hotels, to membership

organizations” (and even individual website

designers), “the potential for conflict between state

public accommodations laws and the First

Amendment rights of [individuals] has increased.”

Boy Scouts, 530 U.S., at 657.

States today routinely try to cast their own

efforts at speech compulsion in a similar light,

arguing that they operate in the same lineage as the

Civil Rights Act and seek only to prevent denials of

service to certain people as a class. See Brief in

Opposition 33 (explaining the purpose of CADA as

“preventing the harm, both dignitary and economic,

inflicted by denials of equal access to commercially

available goods and services”). But there is a world

of difference between Jim Crow and the kind of

expressive conduct threatened by CADA; it is the

“difference between the humiliation of being denied

a seat at the table of public life and the pain of

sitting by people who oppose decisions you prize.”

Girgis, supra, 125 Yale L.J. F., at 413. Only the

former is properly the subject of anti-discrimination

law, because it “was about avoiding contact with

certain patrons[] by refusing them any service at

all.” Id., at 412 (emphasis added). The legal

21

prohibition

on

conduct

imposed

by

antidiscrimination law is justified by the nature of the

harm, rather than its scale.

Vociferous disagreement concerning life’s central

questions,

while

often

uncomfortable,

“is

unavoidable in free societies and conducive to

reform.” Id., at 412. Free societies are boisterous

societies because they safeguard the rights of

individuals to think for themselves, to voice the

conclusions at which they arrive, and to associate

with others who think similarly. The First

Amendment rights of free expression and association

are “especially important in preserving political and

cultural diversity and in shielding dissident

expression from the majority.” Boy Scouts, 468 U.S.,

at 622. When the State uses its power to purge

“dissident expression” by compelling individuals to

speak only state-approved messages, it oversteps the

bounds imposed upon it by the First Amendment.

CONCLUSION

America is stalked by an ancient fear: The

creeping suspicion that “[i]t is impossible to live with

those whom we regard as damned.” J. Rosseau, The

Social Contract 122 (Maurice Cranston trans.,

Penguin ed., 1968) (1762). The First Amendment

stands as a stark manifestation of a more hopeful

and confident philosophical tradition. Although this

Court does not exist to adjudicate competing strands

of moral philosophy, it is tasked with preserving the

structural arrangements enshrined in our shared

Constitution.

22

Ongoing

disagreement

over

the

most

fundamental moral questions is not a sign that our

constitutional arrangements for fostering debate

have failed, but that they still do their job of

securing a public square in which competing claims

of ultimate truth can be tested against each other.

“[D]isagreement on matters of principle is not the

exception but the rule in politics,” and a government

that attempts to use its power to settle contentious

disputes in favor of one side does not merely seek to

end an argument—it seeks to extinguish politics

itself. J. Waldron, Law and Disagreement 15 (1999).

And so, each of us is confronted daily with ideas

and opinions that we find ill-considered, annoying,

reprehensible, or that even strike at the heart of our

own conceptions of the good and the true. This

perpetual “verbal cacophony,” though perhaps

exhausting, is “not a sign of weakness, but of

strength.” Cohen, 403 U.S., at 25. Freedom of speech

strengthens citizens because it enables them to

interrogate their own beliefs and forces them to

engage with the ideas of others. It is “a powerful

medicine in a society as diverse and populous as

ours,” and ultimately aims to “produce a more

capable citizenry and more perfect polity.” Id., at 24.

It is often tempting to accept the despairing view

that free speech inevitably tends towards social

dissolution and that only a government willing to

sort the intellectual wheat from the backwardsthinking chaff can set things right. But that

approach does not “comport with the premise of

individual dignity and choice upon which our

political system rests.” Id. Accepting the premise

that freedom of speech is better than the alternative

23

can sometimes feel like an article of faith, but this

country and its legal infrastructure for the

protection of individual rights were built on nothing

less.

The Court should reverse.

June 2, 2022

Respectfully submitted,

Edward M. Wenger

Counsel of Record

HOLTZMAN VOGEL

BARAN TORCHINSKY &

JOSEFIAK PLLC

2300 N Street, NW

Ste 643-A

Washington, DC 20037

(202) 737-8808

emwenger@holtzmanvogel.com

Shawn Toomey Sheehy

Andrew Pardue

HOLTZMAN VOGEL

BARAN TORCHINSKY &

JOSEFIAK PLLC

15405 John Marshall Highway

Haymarket, VA 20169

(540) 341-8808

(540) 341-8809

Counsel for Amicus Curiae