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Hypothetically, suppose that I own and operate a small business in Colorado which expresses artwork for clients and that I do not want to express Christian concepts because I am a Satanist. Might it be lawful to make a public notice that I will not offer business to folks who want me to express Christian concepts? Is it any better/worse if I note that I will accept Christian clients as long as they don't ask for anything Christian to be expressed in the product?

For context, I'm attempting to understand the conjunction of Masterpiece and 303 Creative.

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    – Dale M
    Jul 1, 2023 at 21:25

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Probably not. The impediment is the claim that you have a genuinely held religious belief. Changing the context a tiny bit, your employer is statutorily required to make an accommodation for the requirements of your religion, therefore they cannot fire you for refusing to work on the Sabbath, unless it would impose an unreasonable burden on them. If they fire you, you complain to the EOC and the EOC sanctions them. The employer's defense would be that you did not request a reasonable religion-based accommodation (you failed to explain that this was about Sabbath). The employer does not scrutinize the validity of your claim (does not demand proof of what your religion requires).

In your planned announcement, you are not requesting a statutory accommodation from the government, analogous to requesting an accommodation from an employer, you are offering a defense in the case the government takes action against you for violating the law. There is a statutory exception to the prohibition against employment discrimination based on religion, that (roughly speaking) a church is not required to hire a rabbi instead of a mullah to deliver sermons. There is no statutory exception w.r.t. public accommodations and religious discrimination. Therefore, to implement your plan, you would have to have the law or the EOC's interpretation of it overturned as unconstitutional.

To succeed in your argument, you would have to show that the law unconstitutionally restricts your free exercise of your religion. One part would be a demonstration that your religion prohibits... The least likely scenario is that your religion prohibits doing business with a person outside of your religion. I don't of any religion that maintains a requirement of absolute religious segregation, but that is hypothetically a path to argue – that you will burn in hell forever if you do business with a Christian, or a Muslim. I am maximally skeptical that the courts would ever take such a claim seriously.

A more likely possibility would involve "compelled speech" as well, where you are forced under the law to express a viewpoint that contradicts your fundamental religious beliefs. You cannot be compelled by law to express a viewpoint. What is less clear is what constitutes expressing a viewpoint, see this. For example, there is a federal law withholding federal funds from schools which discriminate against military recruiters. Some law schools argued in Rumsfield v Forum for Academic and Institutional Rights that allowing military recruiters amounts to forcing the schools to express a viewpoint, but the court held that "the Solomon Amendment regulates conduct, not speech".

The upshot of 303 Creative LLC v. Elenis is that "The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees". A proposal to refuse to service Christians plainly does not fall within the penumbra of that ruling. Nor does a refusal to print books containing religious material (which you already created). You have to cater to Christians, but you do not have to create Christian messages. You could draw a line between a simple ISP who you pay to make available your religious website (you create it), versus hiring a company to design the website, which clearly involves "expression".

The issue is simplified if you don't make a claim based on a specific belief system, instead rely on simple "compelled speech" doctrine. General beliefs do not enjoy the same "Free Exercise" protections that religions enjoy. What matters is what you are "expressing", not what you are doing (like, printing).

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  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on Law Meta, or in Law Chat. Comments continuing discussion may be removed.
    – Dale M
    Jul 19, 2023 at 1:16

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