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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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  • 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
    Commented Jul 1, 2023 at 21:25

3 Answers 3

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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
    Commented Jul 19, 2023 at 1:16
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I think you can declare that you won't paint artwork that promotes Christian principles. Since the Masterpiece Cakework ruling allows you to refuse these requests, you're simply saving customers the effort of offering you the job that you're going to refuse.

But I don't think that extends to not serving Christian clients at all. You can't presume that Christians will only request images that promote their religious values. Christian homes are full of secular images. Da Vinci painted both "The Last Supper" and "Mona Lisa".

Even if you only paint Satanist material, a Christian might want to buy one of these because they admire your technique, or for ironic reasons. You can't refuse to do business with them on the basis of their religion, it violates public accomodation laws.

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    Da Vinci also created war machines, busts for rulers, and anatomical studies. Some of the material he created was actually illegal in some places of Europe when he did, especially the anatomical works.
    – Trish
    Commented Jun 5 at 6:59
  • @Trish I guess it's about time we cancelled LDV.
    – Barmar
    Commented Jun 5 at 14:48
  • @Trish what does that have to do with this answer?
    – phoog
    Commented Jun 6 at 1:22
  • @phoog I tried to add context: LDV was more than just a painter of two works. He made Christian art, and works explicitly banned by Christian virtues (anatomy pieces) and laws (and probably might constitute what then would be considered satanic). He made utilitarian works (design sketches) and works praising specific people. The Mona Lisa is just a message-neutral piece of art somewhere in between the extremes of what he did. And in fact, she's mostly mediocre and wouldn't be remarkable had she not been stolen.
    – Trish
    Commented Jun 6 at 8:03
  • Of course he was more than just the painter of two works, he was the archetype of the Renaissance Man. I just chose two of his best know works to make the contrast between secular and religious.
    – Barmar
    Commented Jun 6 at 15:09
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You can limit what expression you offer

Under Masterpiece Cake v. CCRC and 303 Creative LLC v Elenis, you can limit your offers where you express something through your work. Under both cases, you could deny a request to paint Saint Olga, as painting a person in one style or another is speech. You might frame her as a Christian icon or the person that is responsible for the eradication of the Drevlians, and there are reasons either could violate your sincerely held beliefs - and therefore you could deny such a request based on your free speech.

So yes, you can have a list like "I don't create [insert material]".

You can not limit who you work for

You can however not limit your offer by the protected characteristics of who you work for: If you don't offer paintings of Olga in a specific style, you have to do so for everybody, not based on who is trying to buy it. See Scardina v Masterpiece Cake: If you don't believe there is a message in your work under ordinary circumstances, and you'd sell the same product to anyone you don't know anything about and the message you oppose only starts to exist in certain circumstances, then you can not discriminate.

So no, you can not have a rule like "I don't draw for Christians" "Customers can't be black" or "I don't work for ...-sexual people"

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