Alliance Defending Freedom (ADF) announced today that it has filed a petition asking the U.S. Supreme Court to review a recent decision by the 10th Circuit Court of Appeals that upheld a Colorado law that forces web designers to create websites that violate their religious beliefs.
“The government shouldn’t weaponize the law to force a web designer to speak messages that violate her beliefs. This case involves quintessential free speech and artistic freedom, which the 10th Circuit dangerously cast aside,” said ADF General Counsel Kristen Waggoner, who argued before the 10th Circuit on behalf of Smith.
The case, 303 Creative v. Elenis, involves Lorie Smith, a graphics and website designer who wants to create websites celebrating traditional heterosexual marriages in accordance with her beliefs as a Christian. The Colorado Anti-Discrimination Act (CADA) says that in order to do so she must also create custom websites celebrating same-sex marriage. Moreover, the law prohibits her from putting any statement on her website explaining that she will only create websites that speak messages that are consistent with her Christian faith. She filed a lawsuit challenging the law as a violation of the First Amendment’s Free Speech and Free Exercise clauses.
Ms. Smith described her services as open to all but refused to be forced to communicate messages outside of her conscience. She explained,
“An artist uses a paint brush to paint on a canvas, and I take the same approach for my work. Every website, every graphic, every design that I create is a representation of me. I work closely in collaboration with each client for each project and what I create for them is truly artwork that conveys some message and celebrates some ideals.
I have served and continue to serve all people, including those who identify as LGBT. I simply object to being forced to pour my heart, my imagination, and talent into messages that violate my conscience. Artists don’t surrender their freedom of speech when they choose to make a living by creating custom expressions. Those who create such speech for a living are entitled to the full protection of the Constitution. Just because we communicate one viewpoint doesn’t mean we should be forced to promote an opposing viewpoint.
Today it’s me, but tomorrow it could be you. My case is about the freedom of all Americans to live and work consistently with their beliefs. Free speech is for everyone. Not just those who agree with the government.“
In July, a panel for the 10th Circuit ruled 2-1 that Colorado can force Smith to create websites that violate her beliefs and cannot state her religious beliefs on her website. Circuit Judge Mary Beth Briscoe, a Clinton appointee, wrote the majority opinion, stating:
“CADA is a neutral law of general applicability, in that it is not unconstitutionally vague or overbroad… 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 period.”
Chief Judge Timothy M. Tynkovich dissented strongly by opening with a quote by George Orwell: “If liberty means anything at all, it means the right to tell people what they do not want to hear.”
“Though I am loathe to reference Orwell, the majority’s opinion endorses substantial government interference in matters of speech, religion, and conscience. Indeed, this 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…. While everyone supports robust and vigorously enforced anti-discrimination laws, those laws need not and should not force a citizen to make a Hobson’s choice over matters of conscience…. what Colorado cannot do is turn the tables on Ms. Smith and single out her speech and religious beliefs for discriminatory treatment under the aegis of anti-discrimination laws.”
In its petition for certiorari, ADF stated that Smith’s business is an artistic one, explaining that the creation of wedding websites is “pure speech,” as the websites Smith intends to offer “celebrate and promote the couple’s wedding and unique love story” by combining custom text, graphics, and other media. “The websites consequently express approval and celebration of the couple’s marriage, which is itself often a particularly expressive event,” the petition noted.
The case is similar to that of Colorado cake artist Jack Phillips, who willingly sells commodity cakes to everyone but whose refusal to create custom cakes celebrating same-sex weddings has led to continuing harassment by both LGBT activists and state officials — even though the Supreme Court in a 7-2 decision has already upheld Phillips’ First Amendment right to refuse business based on his religious beliefs and free speech protections.
Waggoner noted, “Now Lorie Smith is being told that she must speak views she opposes and can’t post about her beliefs on her own business website. The 10th Circuit’s reasoning turns free-speech protections on their head by saying that the more ‘unique’ speech is, the more the government can compel it. That kind of dangerous, unconstitutional reasoning is why we have asked the U.S. Supreme Court to take Lorie’s case.”
If the Supreme Court grants certiorari, this will be just the latest of several cases heard by the Court on the intersecting plane of religious liberty and discrimination in the last five years. They include the aforementioned Masterpiece Cakeshop v. Colorado Civil Rights Commission and Philadelphia v. Fulton, in which the Court affirmed in a 9-0 ruling that faith-based foster care agencies can operate in accordance with church teachings on same-sex relationships.
The 10th Circuit majority panel says that CADA is a neutral law, but it is, in fact, a vehicle to undermine and gut the religious liberty protections found in the Constitution. Anyone who thinks this principle will be applied equally across all belief systems hasn’t been paying attention. Does anyone think that an LGBT web designer will be forced by the Colorado authorities to design a website for a conservative Christian group celebrating traditional marriage?
This is not about refusing to serve the LGBT community.
This case, similar to that of Jack Phillips in Masterpiece Cakeshop v. Colorado and Barronelle Stutzman in Arlene’s Flowers v. State of Washington, will inevitably be mischaracterized as an anti-gay scenario where the party being sued is accused of refusing service based on sexual identity. But this is not the case.
Like Phillips and Stutzman, Lorie Smith is completely willing to serve people of any race, religion, or sexual identity. Creating a website for a business owned by a member of the LGBT community is one thing, but creating a website for this scenario is not about serving them — it’s about refusing to custom design a product that explicitly communicates a message that conflicts with the designer’s deeply held beliefs.
Jack Phillips told the gay couple who sued him that they were free to purchase whatever cake they’d like in his shop and use it for whatever purpose they desired — even their wedding. He didn’t refuse to sell them a cake because of their sexual orientation, he only refused to custom design the cake since its purpose explicitly delivered a message that he disagreed with on the basis of his sincerely held beliefs.
While ADF says they are optimistic about the Court taking up the case and ruling in Smith’s favor, only time will tell whether the justices on the High Court rule with an originalist approach to constitutional jurisprudence. The Court ruled in favor of Jack Phillips in 2018, though on narrow grounds, when the Court was a 5-4 conservative majority. Now with a 6-3 conservative majority, it would seem likely they would rule in Smith’s favor. However, earlier this year the Court denied review of Barronelle Stutzman’s case, one that was significantly similar to Phillips’ case and one that could have solidified on broader grounds the Court’s view of religious liberty. This was a huge loss for Stutzman and a curious move by the Court — a move that brings into question how sincere they are about religious liberty.