Denver Newsroom, Feb 23, 2022 / 11:09 am (CNA).
The U.S. Supreme Court agreed Tuesday to hear the case of a Colorado web designer who fears prosecution under state anti-discrimination law for stating her faith-based objections to providing services that promote same-sex marriage.
The court agreed Feb. 22 to 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.”
It will not take up the question of whether Colorado’s anti-discrimination law violates the designer’s free exercise of religion. The case, 303 Creative LLC v. Elenis, will be heard during the court’s next term, which begins in October.
“I love creating custom websites and graphics and working with individuals and small businesses to help them solve their challenges, promote their events, and market their products and services. Like any commissioned artist and speaker, I love using my talents to shape messages for my clients—provided those messages don’t violate my values,” Lorie Smith, the owner of design studio 303 Creative, told reporters Feb. 22.
“I have clients ranging from individuals to small business owners to non-profit agencies. I have served and continue to serve all people, including those who identify as LGBT. But like all artists, there are some messages that I can’t pour my heart, imagination, and talents into creating because they violate my core convictions.”
Colorado’s Anti-Discrimination Act includes sexual orientation and gender identity as protected classes.
Smith’s attorneys say that the law would force her to live under threat of prosecution if she declines to design and publish websites that promote messages or causes that conflict with her beliefs, such as messages that promote same-sex marriage or same-sex weddings. Because of the law, Smith has not sought to expand her business to include designing websites for weddings.
Her case is not a response to government action. Rather, it is a pre-enforcement challenge intended to prevent the use of the law that Smith’s attorneys say affects creative professionals who have religious or moral concerns about creating content that violates their beliefs.
A panel of the 10th Circuit Court of Appeals ruled against Smith 2-1 in July 2021, stating that Colorado had an interest in combating discrimination.
The panel agreed that the Colorado law forced Smith to create websites and speech that she “would otherwise refuse” and created a “substantial risk” of removing “certain ideas or viewpoints from the public dialogue,” including Smith’s beliefs about marriage. However, it ruled in favor of the law, in part on the grounds that she creates “custom and unique” expression.
The circuit court’s Chief Judge, Timothy Tymkovich, in his dissent, said the case “represents another chapter in the growing disconnect between the Constitution’s endorsement of pluralism of belief on the one hand and anti-discrimination laws’ restrictions of religious-based speech in the marketplace on the other.”
The ruling “endorses substantial government interference in matters of speech, religion, and Conscience,” he said, criticizing the Colorado law as “overbroad and vague.”
Colorado Attorney General Phil Weiser said that “Companies cannot turn away LGBT 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.”
Speaking to reporters Feb. 22, Smith’s attorney, ADF General Counsel Kristin Waggoner, said, “The government shouldn’t weaponize the law to force a web designer to speak messages that violate her beliefs. This case is about the freedom of all artists and all Americans. This freedom transcends particular views and is foundational to a free society.”
“No one should be compelled to speak messages that violate their conscience under threat of government punishment. If the government has the power to force Lorie to speak a message, it can force any one of us to do so—a Democratic speechwriter to promote the Republican party or an LGBT web designer to condemn same-sex weddings,” Waggoner continued.
The attorney said that “this case illustrates exactly why we have a First Amendment—to prevent officials from eliminating ideas they dislike from public dialogue and from punishing beliefs they want to purge from the public square. Free speech allows us to explore and test ideas and pursue truth; it is foundational to a diverse society. Without it, the state decides what is truth.”
At issue in the 303 Creative case is the same law that brought Lakewood, Colo. baker Jack Philips and his business Masterpiece Cakeshop to the U.S. Supreme Court. In 2012, Philips declined to make a cake for a same-sex wedding, on the grounds that doing so would violate his religious beliefs. His prospective customers filed a complaint, and Philips went before the Colorado Civil Rights Commission.
The civil rights commission ordered Phillips and his staff to undergo anti-discrimination training and to submit quarterly reports on how he is changing company policies. He had to cease making wedding cakes to continue operating his business according to his conscience while not running afoul of the law.
In June 2018, the U.S. Supreme Court ruled that the Colorado commission had violated Phillips’ rights. Its 7-2 opinion said the commission “showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection.”
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