The Supreme Court announced Tuesday that it will hear a Colorado case in which a lower court ruled that a custom website designer who believes same-sex marriage is immoral must construct websites to celebrate gay weddings if she wants to fashion them for traditional weddings.
Lorie Smith, the owner of a Denver-based graphic design company called 303 Creative, wanted to expand her services to include custom websites for weddings. However, her religious beliefs prevent her from designing sites for same-sex marriages, and she was afraid the Colorado Civil Rights Commission, the same tribunal that twice ruled against Jack Phillips of Masterpiece Cakeshop fame, would deny her the right to service traditional marriages only. She and the Alliance Defending Freedom sued the commission to, in effect, find out. The commission ruled against her.
The logic employed by the two-judge majority was called “bonkers” by one legal expert.
She appealed to the 10th Circuit Court of Appeals, which ruled 2-1 in July 2021 to uphold the Colorado anti-discrimination statute requiring Smith to design and publish websites championing beliefs she disagrees with on the basis of her religion. In addition, she was gagged from explaining on her website the sorts of websites she would and would not create.
“The government doesn’t have the power to silence or compel creative expression under the threat of punishment. It’s shocking that the 10th Circuit would permit Colorado to punish artists whose speech isn’t in line with state-approved ideology,” said Kristen Waggoner, an attorney for the Alliance Defending Freedom. “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.”
The logic employed by the two-judge majority was called “bonkers” by one legal expert. Judge Mary Beck Briscoe wrote in the majority opinion: “To be sure, LGBT consumers may be able to obtain wedding-website design services from other businesses; yet, LGBT consumers will never be able to obtain wedding-related services of the same quality and nature as those that Appellants offer. Thus, there are no less intrusive means of providing equal access to those types of services.”
In other words, LGBT consumers will have available to them many website-design companies to patronize, but the service Lorie Smith’s company, 303 Creative, will be providing is somehow unique, and thus discriminates against gay customers by not allowing them to procure its services.
The Supreme Court, however, in deciding to grant review to Smith’s case, 303 Creative v. Elenis, has narrowed the purview of its decision to “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”
The Alliance Defending Freedom had asked the Court to rule on the Colorado anti-discrimination law’s violation of free speech, but also whether the Colorado law violated the First Amendment’s free exercise of religion clause and whether the Court should overrule Employment Division v. Smith, a 1990 decision that ruled citizens could not be exempt from laws on religious grounds if the laws were neutral and generally applicable to everyone. What that means is that if religious behavior isn’t specifically targeted by the law (which it never is), the law is constitutional. Conservatives have been complaining about Smith for 30 years. (READ MORE: The Supreme Court Passes on Religious Liberty Cases)
The Court, in deciding to rule only on the law’s violation of free speech, once again sidesteps the larger issue of whether wedding vendors for whom same-sex marriage is a violation of religious beliefs are required by law to violate those beliefs in order to stay in business.
Other cases the Court has recently taken up that bear on religious liberty have all been decided on narrow grounds that leave no clear guidance on the issues important to religious conservatives. Phillips’ case, in which it was ruled he could legally refuse to bake a cake for a same-sex wedding, was not decided on pure religious liberty grounds but because the panel that originally denied his claim had used incendiary words and demeaned religion in deciding his case. Another case for which the Court could have offered clear precedent on religious liberty came down last June, Fulton v. City of Philadelphia. The Court ruled that a Catholic adoption agency could participate in the city’s adoption-referral service even though its religious beliefs would not permit it to place children with same-sex couples, but it ruled not on the broad contours of religious liberty but on the city’s violation of an administrative detail in applying its own rule.
Also last year, the Court denied certiorari to Barronelle Stutzman’s case, in which the Washington state florist lost the lucrative wedding market — crucial for florists’ economic well-being — because her religious beliefs did not permit her to service a same-sex wedding.
303 Creative, however, may be crucial in determining when creative business owners engaged in expressive creations are permitted exemptions from some anti-discrimination laws.
No timeline was established for the case, so the presumption is 303 Creative will be taken up during the 2022-2023 session.