State attorneys said that businesses involved in the wedding industry must serve same-sex couples under anti-discrimination law, Law Week Colorado reports. Their brief said, “if a merchant is willing to design a website featuring certain statements — like ‘Alex and Jordan request the honor of your presence’ … or ‘Taylor and Morgan invite you to share their joy’ — for an opposite-sex couple,” then the business must provide that service to a same-sex couple.
The panel court decision agreed with this analysis, saying that “grave harms” can come when public accommodations discriminate. “Combatting such discrimination is, like individual autonomy, ‘essential’ to our democratic ideals,” said the ruling.
While the panel’s majority agreed that a diversity of faiths and religious exercise, including those of the plaintiff, enriches society, it added: “Yet, a faith that enriches society in one way might also damage society in other ways, particularly when that faith would exclude others from unique goods or service.”
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.”
“It seems we have moved from ‘live and let live’ to ‘you can’t say that’,” he said. Tymkovich objected that the majority decision concluded that the state has a “compelling interest in forcing Ms. Smith to speak a government-approved message against her religious beliefs” and also that the public accommodation law is “the least restrictive means” to do so.
The ruling “endorses substantial government interference in matters of speech, religion, and Conscience,” he said. He criticized the Colorado law as “overbroad and vague,” and said the statements of the state’s attorneys showed it is willing to “distribute punishment inequitably.”
For her part, Smith said her approach to design is a personal one. Every website, graphic, and design she creates is a representation of her.
“I work in close collaboration with each client for each project, and what I create for them is truly artwork that conveys some message and celebrates some ideals,” she said.
“Artists must be free to create and speak messages consistent with their convictions without the threat of unjust punishment,” said Smith. “Today, it’s me, but tomorrow it could be you. My case is about the freedom of all Americans to live and work consistent with their beliefs. Free speech is for everyone, not just those that agree with the government.”
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.
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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.”
The high court also cited inconsistent treatment of complaints by Colorado authorities. When a man complained that other bakeries refused to create cakes with an anti-gay marriage message, religious imagery, and loosely paraphrased Bible passages, state authorities rejected the complaints.
Phillips was then caught up in another controversy when a prospective customer asked him to make a cake to celebrate a gender transition, and he declined citing his religious beliefs. While state officials rejected the customer’s complaint that this constituted discrimination on the basis of gender identity, the customer filed a civil lawsuit against Phillips. In June 2021 a judge ruled against the baker and ordered him to pay fines, though he has appealed that decision.