EXCLUSIVE: Over 50 Republicans in Congress are filing an amicus brief at the Supreme Court calling on the high court to reaffirm constitutionally protected free speech and religious liberty in a closely-watched case pitting religious freedom and artistic expression against LGBTQ rights.
Sen. Ted Cruz, R-Texas, and Sen. Mike Lee, R-Utah, are leading the Supreme Court filing, which includes 20 Senate and 38 House of Representatives co-signers.
The Court will decide whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.
"A victory in favor of 303 Creative would mean a victory for religious freedom everywhere. Compelled speech against anyone’s religious beliefs is an egregious infringement on the most fundamental liberties our Constitution protects. Every American should have the freedom to pursue their professions without being forced to sacrifice their religious beliefs," Cruz told Fox News Digital.
The case comes after the highly publicized Masterpiece Cakeshop decision in 2018, in which the Supreme Court ruled a baker, Jack Phillips, was treated with anti-religious bias for refusing to bake a wedding cake for a same-sex couple. However, the justices did not address a larger question of whether certain businesses can assert a religious liberty claim when refusing to serve certain customers.
The Alliance Defending Freedom, which is representing designer Smith in the case, had asked the high court to review a 2–1 decision made in July 2021 by a panel of the U.S. Court of Appeals for the 10th Circuit that ruled in favor of Colorado’s Anti-Discrimination Act (CADA).
"The government doesn’t have the power to silence or compel creative expression under the threat of punishment," ADF General Counsel Kristen Waggoner, Smith’s attorney said after the Supreme Court agreed to take up the case. "It’s shocking that the 10th Circuit would permit Colorado to punish artists whose speech isn’t in line with state-approved ideology."
The case has drawn criticism that Smith is on an "anti-LGBTQ crusade," but she insists that is not the case.
Lambda Legal senior counsel Jennifer Pizer, who filed an amicus brief in the case, accused Smith and her attorneys of using religion to marginalize the gay community.
"We are witness yet again to the unrelenting anti-LGBTQ crusade being waged by self-described Christian fundamentalist legal groups aiming to chip away at the hard-won gains of LGBTQ people by carving out swaths of territory where discrimination can flourish," Pizer said. "The constitutional protections for religious freedom and free speech were never intended as weapons of discrimination for those doing business with the general public."
Smith responded during an interview with Fox News: "I work with all people and I have worked with all people including those who identify as LGBT," she said. "I’m unable to promote all messages. And to take it a step further and to clarify, Colorado and the Tenth Circuit Court say they agree that I work with all people. So that’s certainly something that’s been clarified and agreed to."
Oral arguments in the 303 Creative case are expected to be held in the fall.
Fox News' Jessica Chasmar and Ronn Blizter contributed to this report.