PHOENIX – Arizona Attorney General Mark Brnovich and Nebraska Attorney General Doug Petersen are leading a coalition of 16 state attorneys general to defend the free speech rights of business owners at the Supreme Court of the United States (SCOTUS). In 303 Creative v. Elenis, the coalition is arguing that States cannot apply their public accommodations laws to force business owners to create custom speech. The coalition is asking SCOTUS to grant review of the case to ensure freedom of speech for all.
“Artists should not be forced to create something against their religious beliefs,” said Arizona Attorney General Mark Brnovich. “There has been a gradual encroachment of government in the personal lives of Americans. Just because you’re a custom baker or a graphic designer, doesn’t mean you lose your constitutional rights."
Lorie Smith, who owns 303 Creative in Colorado, is a graphic artist and website designer. Smith wants to expand her business into wedding websites, but her religious beliefs prohibit her from promoting same-sex weddings. Under Colorado’s anti-discrimination law, the Tenth Circuit says that if Smith designs websites for opposite-sex weddings, she is required to create websites for same-sex weddings. Smith sued alleging that Colorado’s law violates her rights under the First Amendment.
The coalition argues that freedom against compelled speech applies in this case because Smith’s custom websites are her constitutionally protected speech. Because Smith speaks through her custom design work, Colorado cannot force her to address the topic of same-sex marriage. Numerous courts—including the Eighth Circuit and the Arizona Supreme Court—have recently affirmed that very point. For example, in 2019, the Arizona Supreme Court ruled the City of Phoenix could not compel calligraphy artists to create custom wedding invitations for same-sex weddings. The court determined that the City’s interest in ensuring equal access to goods and services was “not sufficiently overriding as to justify compelling Plaintiffs’ speech by commandeering their creation of custom wedding invitations.”
The coalition further explains how protecting free speech still allows states to protect consumers from discrimination in commercial transactions. Recently, Arizona Attorney General Brnovich’s Office (AGO) settled with Uber, Postmates, and DoorDash over race discrimination allegations when the companies offered price distinctions based on a person’s race.
Joining Arizona and Nebraska are the states of Alabama, Arkansas, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Oklahoma, South Carolina, Tennessee, Texas, Utah, and West Virginia.
Copy of coalition’s amicus brief.