Don't let Colo. law silence same-sex marriage objections, web designer asks Supreme Court

Lorie Smith, owner and founder of 303 Creative. Lorie Smith, owner and founder of 303 Creative./ Alliance Defending Freedom.

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 or weddings has asked the U.S. Supreme Court to hear her case.

“Artists don’t surrender their freedom of speech when they choose to make a living by creating custom expression,” Lorie Smith, a web designer who operates the design studio 303 Creative, told reporters Sept. 24. “Those who create 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. Laws should not be weaponized to force us to do so.”

“Colorado is censoring my speech,” she said in a press call hosted by the Alliance Defending Freedom legal group. “I cannot even post my beliefs about my views on my own website. The government should not banish people from the marketplace based on their views, whether those views are about marriage or something else.”

Colorado’s Anti-Discrimination Act includes sexual orientation and gender identity as protected classes. The lawsuit challenges parts of the law on the grounds that they violate First Amendment protections of free speech and free exercise of religion.

Alliance Defending Freedom attorneys argued that the law bars creative professionals from expressing views about marriage that suggest someone is “unwelcome, objectionable, unacceptable, or undesirable.” They may not express views that suggest the designer won't create particular works because of those beliefs.

Failure to secure a court ruling against the law, Smith’s attorneys said, 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.

In a 2-1 July decision, a panel of the 10th Circuit Court of Appeals ruled against Smith, stating that the state of Colorado had an interest in combatting 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 government shouldn’t weaponize the law to force a web designer to speak messages that violate her beliefs,” Kristen Waggoner, general counsel with Alliance Defending Freedom, told reporters. “This case involves quintessential free speech and artistic freedom, which the 10th Circuit astonishingly and dangerously cast aside.”

“The 10th Circuit found that yes, Lorie’s website designs were speech protected under the First Amendment and that, yes, Lorie would, in fact, serve everyone regardless of who they are. But despite all that, the 10th Circuit said that the government could force Lorie to speak views she opposes and prevent her from posting about her beliefs on her own website,” Waggoner said.

Waggoner said that both the Eight Circuit Court of Appeals and the Arizona Supreme Court have ruled in favor of artists facing possible pressure from similar laws.

Smith’s 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. The law prevents Smith from seeking to expand her business to include designing websites for weddings.

Attorneys for the state of Colorado have argued that the plaintiff lacks standing, saying the threat of an enforcement action is hypothetical. The appellate court decision disagreed, saying the plaintiff has “a credible fear of prosecution” for violating the law.

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.”

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“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.