303 Creative v. Elenis
Description: Lorie Smith is an artist who runs her own design studio, 303 Creative. She specializes in graphic and website design and loves to visually convey messages in every site she creates. She left the corporate design world to start her own small business in 2012 so she could use her skills to promote causes consistent with her beliefs and close to her heart, such as supporting children with disabilities, the beauty of marriage, overseas missions, animal shelters, and veterans. She was excited to expand her portfolio to create websites that celebrate marriage between a man and a woman, but Colorado made clear she’s not welcome in that space. A Colorado law is censoring what she wants to say and requiring her to create designs that violate her beliefs about marriage. She enjoys working with people from all walks of life, but, like most artists, can’t promote every message. Her decisions about which projects to design are based on what message she’s being asked to express, not who requests it. After realizing that Colorado was censoring her and after seeing Colorado use this same law to punish Masterpiece Cakeshop owner Jack Phillips, she challenged the law to protect her freedom and her art studio.
Opponents of free speech rev up misinformation engine following historic 303 Creative ruling
WASHINGTON – In the wake of the U.S. Supreme Court’s historic opinion protecting the free speech rights of all Americans, commentators and activists have propagated false information about 303 Creative v. Elenis.
It’s time to set the record straight.
“This desperate attempt to malign ADF, our client, and a critical ruling affirming all Americans’ free speech blatantly distorts the facts of the case and the nature of pre-enforcement lawsuits,” said ADF CEO, President, and General Counsel Kristen Waggoner, who argued before the Supreme Court on behalf of Lorie Smith and 303 Creative. “To say that Lorie Smith or ADF fabricated a request for a same-sex wedding website is a lie. It would make no sense to have fabricated a request because one wasn’t required for the court to decide her case. To pretend that a request that nowhere featured in the Supreme Court’s decision was at ‘the heart’ of the case demonstrates an ignorance regarding the legal principles involved. And it’s telling that many who push this false narrative can’t bring themselves to consider the more likely scenario that ‘Stewart’ or another activist did in fact submit the request.”
This follows a wave of misinformation surrounding the case, ignited by a June 29 article in The New Republic, which falsely insinuated that ADF and client Lorie Smith fabricated a request for custom design work for a same-sex wedding. It is undisputed that Smith received the request in September 2016 after she filed her case, and that she has received other requests for custom wedding work while this case has been pending. Regardless, whether she received any requests at all is irrelevant to the legal issues in the case. In fact, neither the court of appeals nor the Supreme Court mentioned any such request in their opinions.
Smith’s case was a pre-enforcement challenge, which allows people to avoid the choice between risking prosecution or giving up their freedom. Pre-enforcement lawsuits have been a hallmark of America’s tradition of civil-rights litigation for over a hundred years. And the Supreme Court has ruled on more than a dozen pre-enforcement cases in the last ten years. Pre-enforcement challenges have been brought by parties across the ideological spectrum. This includes the ACLU, the Southern Poverty Law Center, Lambda Legal Defense and Education Fund, to name a few.
“Perhaps the most appalling episode in this entire spectacle is the state of Colorado’s demonstrably false statements to media about the case,” Waggoner continued.
In a July 3 article in The Hill, Colorado Attorney General Phil Weiser is reported as saying: “Our position in this case has been there is no website development happening, there is no business operating. This was a made-up case without the benefit of any real facts or customers.”
This directly contradicts the facts to which the state stipulated, which make the attorney general’s statement to the media demonstrably false. Smith incorporated 303 Creative in 2012, four years before the lawsuit was filed. Colorado admitted to the court that Smith offers her website and graphic design to the public (Colorado Brief in Opposition, p. 5) and it stipulated that 303 Creative is a for-profit limited liability company organized under Colorado law and that, as a Colorado place of business, it regularly provides graphic and website design services. (Stipulations 42, 45, 71, 92, 93). The state also conceded that her website designs are expressive and communicate a message, that she “gladly” works with all people, including those who identify as LGBT, and that her decisions on what custom graphics and websites to create are based on the message. (Stipulations 47, 64-65).
“Everyone, including those who identify as LGBT, should be thrilled that the Supreme Court upheld free speech in 303 Creative. This manufactured sideshow is a frantic attempt to delegitimize a historic Supreme Court decision, a client whom Colorado censored for seven years, and a court that upheld a foundational American principle,” Waggoner added. “For those who aren’t happy with it, they should criticize the ruling based on its substance rather than perpetuating falsehoods about the case.”
The court’s full opinion can be accessed here.
Alliance Defending Freedom is an alliance-building, non-profit legal organization committed to protecting religious freedom, free speech, parental rights, and the sanctity of life.
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As the CEO, president, and general counsel of Alliance Defending Freedom, Kristen Waggoner leads the faith-based legal organization in protecting fundamental freedoms and promoting the inherent dignity of all people throughout the U.S. and around the world. Waggoner oversees the efforts of more than 400 ADF team members in seven global offices as well as nearly 5,000 network attorneys engaged in litigation, legislation, training, funding, and public advocacy. ADF also provides legal counsel to over 3,500 churches and ministries through its Ministry Alliance program and defends the persecuted church in dozens of countries. Since 2011, ADF has won 15 cases at the U.S. Supreme Court, including serving on Mississippi’s legal team in the case that overturned Roe v. Wade. Waggoner successfully argued three of those cases: Masterpiece Cakeshop v. Colorado Civil Rights Commission, Uzuebgunam v. Presczewski, and 303 Creative v. Elenis. She is a Peer Review Rated AV® Preeminent™ attorney in Martindale-Hubbell, who clerked for Justice Richard B. Sanders of the Washington Supreme Court after law school and served in private practice in Seattle for nearly 20 years.
Kate Anderson serves as senior counsel with Alliance Defending Freedom, where she is the director of the Center for Parental Rights. Since joining ADF in 2015, Anderson has focused on protecting the conscience rights of individuals being unjustly compelled to forfeit their beliefs under threat of government retaliation, heavy fines, or other punishment. Prior to joining ADF, Anderson was an associate attorney with Ellis, Li & McKinstry, PLLC, in Seattle, where she litigated both civil and criminal cases. She obtained her law degree magna cum laude in 2009 from Gonzaga University School of Law, where she served on the Gonzaga Law Review. She is admitted to the state bars of Arizona and Washington, the U.S. Supreme Court, and several federal district and appellate courts.
Jonathan Scruggs serves as senior counsel and vice president of litigation strategy and the Center for Conscience Initiatives with Alliance Defending Freedom. In this role, he identifies new litigation opportunities and develops new strategies for protecting free speech and religious liberty in collaboration with the chief legal counsel and litigation team directors. As the leader for the Center for Conscience Initiatives, Scruggs oversees the litigation team defending the rights of professionals and business owners to live out their faith as well as the litigation efforts to protect equal opportunities for women in athletics. Since joining ADF in 2006, Scruggs has worked on and prevailed in a variety of cases that protect the right of people to freely express their faith in their business, at school, and in the public square. He earned his J.D. at Harvard Law School and is admitted to practice in the states of Arizona and Tennessee. Scruggs is also admitted to the U.S. Supreme Court and multiple federal district and appellate courts.
John Bursch is senior counsel and vice president of appellate advocacy with Alliance Defending Freedom. Bursch has argued 12 U.S. Supreme Court cases and more than 30 state supreme court cases since 2011, and a recent study concluded that among all frequent Supreme Court advocates who did not work for the federal government, he had the 3rd highest success rate for persuading justices to adopt his legal position. Bursch served as solicitor general for the state of Michigan from 2011-2013. He has argued multiple Michigan Supreme Court cases in eight of the last ten terms and has successfully litigated hundreds of matters nationwide, including six with at least $1 billion at stake. As part of his private firm, Bursch Law PLLC, he has represented Fortune 500 companies, foreign and domestic governments, top public officials, and industry associations in high-profile cases, primarily on appeal. He received his J.D. magna cum laude in 1997 from the University of Minnesota Law School and is admitted to practice in numerous federal district and appellate courts, including the U.S. Supreme Court.