The Lead

U.S. Supreme Court will hear Colorado case over whether web designer can deny service to gay couples

By: - February 23, 2022 11:59 am

A view of the front portico of the United States Supreme Court building in Washington, DC.

By Sara Wilson

The U.S. Supreme Court agreed Tuesday to hear a Colorado case over whether the state’s anti-discrimination law can compel a Christian graphic designer to create wedding websites for same-sex couples, even if doing so contradicts her religious viewpoint.

The court will consider the case, 303 Creative LLC v. Elenis, later this year. It will specifically consider “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”

Lorie Smith is the owner of 303 Creative and wants to put a disclaimer on her website that she will not accept same-sex clients for wedding website commissions because of her Christian beliefs.

In July 2021, the 10th Circuit Court of Appeals in Denver rejected Smith’s First Amendment challenge to the Colorado Anti-Discrimination Act. That act makes it illegal for someone to withhold services based on another person’s race, sexual orientation, disability, or national origin, among other characteristics. The court ruled that Smith’s intended statement would violate the Colorado law and that the law itself  is constitutional.

Now, the country’s highest court will consider the question of whether the anti-discrimination law violates the free speech protection within the First Amendment.

“The U.S. Supreme Court has consistently held that anti-discrimination laws, like Colorado’s, apply to all businesses selling goods and services,” Colorado Attorney General Phil Weiser said in a statement. “Companies cannot turn away LGBTQ customers just because of who they are. We will vigorously defend Colorado’s laws, which protect all Coloradans by preventing discrimination and upholding free speech.”

This case is different than Masterpiece Cakeshop v. Colorado Civil Rights Commission, the 2018 matter in which a Lakewood baker was sued after refusing to make a wedding cake for a same-sex couple. The Supreme Court sided in a narrow ruling with the baker. Smith wants a legal guarantee that she can turn down commissions from same-sex couples in the future, as she has not yet refused service.

Alliance Defending Freedom, a conservative Christian litigation organization, will represent Smith in court. ADF has been designated an anti-LGBTQ hate group by the Southern Poverty Law Center.

In a statement, ADF said the Colorado anti-discrimination law “censors and coerces the speech of creative professionals whose religious beliefs do not conform to state orthodoxy,” and it directly references the 2018 cake case.

“Colorado has weaponized its law to silence speech it disagrees with, to compel speech it approves of, and to punish anyone who dares to dissent. Colorado’s law — and others like it — are a clear and present danger to every American’s constitutionally protected freedoms and the very existence of a diverse and free nation,” Smith’s attorney, Kristen Waggoner, said.

On the other side, the national legal organization Lambda Legal wrote in a statement that First Amendment protections are not basis for discrimination.

“The Supreme Court here has the opportunity to do what the justices should have done three-and-a-half years ago in Masterpiece Cakeshop v. Colorado Civil Rights Commission: Reaffirm and apply longstanding constitutional precedent that our freedoms of religion and speech are not a license to discriminate when operating a business. It is time once and for all to put to rest these businesses’ attempts to undermine the civil rights of LGBTQ people in the name of religion,” senior counsel Jennifer Pizer said.

Last July, the appellate court ruled against Smith 2-1.

“Colorado has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace,” the two justices wrote in their majority opinion. They wrote that while Smith’s free speech rights are compelling, so is Colorado’s interest in protecting its citizens from discrimination.

The dissenter from that ruling, Judge Timothy Tymkovich, called the Colorado anti-discrimination law an “Orwellian diktat” that relies on the subjective experience of customers.

By forcing Smith to accept same-sex clients, Tymkovich wrote that the government would unfairly use its anti-discrimination public accommodation law to compel Smith to speak a “government-approved message against her religious beliefs.”

“No case has ever gone so far,” he wrote. “Though I am loathe to reference Orwell, the majority’s opinion endorses substantial government interference in matters of speech, religion, and conscience.”

Sara Wilson is a reporter for Colorado Newsline, a sibling site of the Pennsylvania Capital-Star, where this story first appeared

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