SCOTUS’ Decision In Upcoming Case Could Have Massive Implications For Small Business Owners Of Faith

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The Supreme Court’s decision in an upcoming case could secure protection for multiple religious small business owners with current lawsuits in federal appeals courts, along with others in 22 states impacted by similar laws, an Alliance Defending Freedom (ADF) lawyer told the Daily Caller News Foundation.

The plaintiff in the 303 Creative LLC v. Elenis case, graphic designer Lorie Smith, is challenging the Colorado Anti-Discrimination Act (CADA), a law that bars public accommodations from restricting services based on sexual orientation. She wants to create wedding websites that reflect her belief that marriage is between one man and one woman, but the law compels her to also create websites for same-sex marriages. When the Supreme Court releases an opinion on her case, which they heard oral arguments for in December, it could impact multiple other cases ADF is currently litigating in lower courts.

“We’re hopeful the Supreme Court affirms that artists are free to create consistent with their beliefs,” ADF Legal Counsel Bryan Neihart told the DCNF.

One case brought by Chelsey Nelson, a Louisville-based wedding photographer and blogger, challenges a city law similar to the Colorado law that would compel her to create photos or blog posts expressing a view of marriage with which she does not agree. A briefing for Nelson’s case is scheduled for April in the 6th Circuit, with oral arguments to be held sometime after that, likely after the ruling in 303 Creative, Niehart said. Twenty-one states have already backed Nelson’s case.

“Forcing Nelson to create custom speech for a same-sex wedding when she objects to the message that speech conveys is compelled speech, which violates the Free Speech Clause,” said Kentucky attorney general in a brief filed Wednesday, which was joined by 20 other states. “And forcing her to do the same in violation of her sincerely held religious beliefs without the City adequately showing why it cannot accommodate her, violates Kentucky’s [Religious Freedom Restoration Act].”

I will always stand up for the religious liberty & free speech rights of Kentuckians.

We led 21 states in filing an amicus brief supporting a Louisville wedding photographer’s right to decline to take custom photographs at a same-sex wedding. https://t.co/plxSeAbqTP pic.twitter.com/ahUDtYaWFk

— Attorney General Daniel Cameron (@kyoag) March 1, 2023

Owners of the Oregon cake shop “Sweet Cakes by Melissa” also filed a brief on Nelson’s behalf.

“This Court’s decision in this case will establish precedent as to whether governments can force artists like Chelsey Nelson and the Kleins to speak messages through their art that violate their consciences,” said owners Aaron and Melissa Klein in the brief.

In New York, photographer Emilee Carpenter brought a similar case before the 2nd Circuit in September, suing the state for its public
accommodation laws, which carry fines of up to $100,000, the potential for a revoked business license, and up to a year-long jail sentence if she declines to photograph a same-sex wedding. Niehart said the court is currently waiting for the decision in 303 Creative.

ADF is also handling cases in the 4th Circuit with Virginia photographer Bob Updegrove and the 9th Circuit with the United States of America Pageants, which argues allowing men in its all-female event would undermine its “core message of honoring women.”

All these cases, Neihart said, are “about the what, not the who.” He said these artists, “create based on the message.”

Twenty-two states, along with Washington, D.C., have public accommodation laws similar to the Colorado Anti-Discrimination Act, according to ADF.

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