Colorado Appellate Court Curbs Web Designer’s Freedom
COMMENTARY: The unjust ruling by the 10th Circuit Court of Appeals cries out to the Supreme Court for its reversal.
The internet should be a place where freedom of speech thrives. The state of Colorado, however, refuses to afford this freedom to a Christian web designer. In a 2-1 decision, the U.S. Court of Appeals for the 10th Circuit ruled that Lorie Smith and her website design company, 303 Creative, must create websites for same-sex weddings even though doing so conflicts with her religious views. The decision is grossly unjust and cries out to the Supreme Court for its reversal.
Smith is an experienced marketing and design professional. After working for several years in the industry, she decided to go out on her own and founded 303 Creative, named after the area code for Denver, where her company is based. Smith will create web designs for anyone, but she doesn’t create all messages. Her website includes the following explainer:
“As a Christian who believes that God gave me the creative gifts that are expressed through this business, I have always strived to honor Him in how I operate it. … Because of my faith, however, I am selective about the messages that I create or promote — while I will serve anyone, I am always careful to avoid communicating ideas or messages, or promoting events, products, services, or organizations, that are inconsistent with my religious beliefs.”
Concerned that Colorado’s Anti-Discrimination Act (CADA) would force her to create messages with which she disagreed, Smith filed a preenforcement lawsuit in federal court in 2016. She challenged two CADA clauses, alleging they violate the First Amendment guarantees to free speech and religious exercise. The first, the “Accommodation Clause,” makes it unlawful for a business to refuse the full and equal enjoyment of services to someone because of their sexual orientation. A second clause, the “Communication Clause,” makes it unlawful to publish any communication indicating that service will be refused or that a person’s patronage or presence will be unwelcome due to sexual orientation.
Alliance Defending Freedom (ADF), the same law firm that successfully represented Colorado baker Jack Phillips in the Supreme Court, is representing Smith. (As an interesting side note, Phillips designed Smith’s wedding cake.) “Colorado’s law would force Lorie to create messages celebrating same-sex weddings if she creates messages celebrating marriage between one man and one woman,” ADF explains. “But on top of that, the law acts as a gag order that prevents Lorie from expressing on her website her reasons why she only creates websites celebrating certain ideas.”
Two judges on a three-judge panel of the 10th Circuit rejected Smith’s suit. Judge Mary Beck Briscoe, joined by Judge Michael Murphy, wrote for the panel’s majority. As an initial matter, they wisely reversed the lower court and held that Smith had standing to challenge the Accommodation Clause. Briscoe found “nothing ‘imaginary or speculative’ about Appellants’ apprehensions that they may violate CADA if they offer wedding-based services in the manner that they intend.”
On the merits of Smith’s case, however, the majority affirmed the lower court’s determination that the state’s antidiscrimination act “is a neutral law of general applicability, and that it is not unconstitutionally vague or overbroad.” Judge Briscoe wrote, “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.” Briscoe also believes that exempting Smith from the Accommodation Clause would “necessarily relegate LGBT consumers to an inferior market because Appellants’ unique services are, by definition, unavailable elsewhere.”
Noted Supreme Court analyst Ed Whelan, writing for National Review, sharply criticized the majority opinion, saying that “Briscoe goes completely off the rails.”
“It doesn’t matter that there are lots of other website design companies that can provide custom wedding websites that celebrate same-sex marriages. Somehow the very fact that Appellants provide custom websites means that they are providing a service that is ‘unique’ for purposes of the ‘narrow tailoring’ inquiry.”
Regarding Smith’s plan to put a statement on 303’s website explaining its refusal to create websites for same-sex weddings, the appellate court ruled that “Colorado may prohibit speech that promotes unlawful activity, including unlawful discrimination.”
“It is difficult to imagine a ruling more hostile to free speech,” was Whelan’s reaction.
Chief Judge Timothy Tymkovich dissented from his colleagues. “The Constitution protects Ms. Smith from the government telling her what to say or do,” he wrote. “But the majority takes the remarkable — and novel — stance that the government may force Ms. Smith to produce messages that violate her conscience. … No case has ever gone so far.”
Same-sex wedding celebrations and the protections of the Constitution have been in tension since the Supreme Court’s 2015 decision in Obergefell v. Hodges, creating a constitutional right to same-sex “marriage.” Justice Anthony Kennedy, writing for the majority in Obergefell, specifically noted that “religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”
So, are Justice Kennedy’s words now hollow?
In 2018, the U.S. Supreme Court ruled against Colorado’s treatment of Phillips, a Christian punished for refusing to bake a cake for a same-sex wedding in defiance of the state’s discrimination laws but did not reach the constitutionality of CADA. And Phillips continues to be attacked.
A lawsuit was recently filed against him after he declined to design a gender-transition cake. And last month, the Supreme Court disappointingly refused to hear the case of Baronelle Stutzman, a Washington florist who was sued by the state and a longtime client for refusing to provide floral arrangements for his same-sex wedding.
Lorie Smith’s lawyers plan to request review by the U.S. Supreme Court. “No one should be banished from the marketplace simply for living and working consistently with their religious beliefs. Not a cake artist. Not a floral artist. Not a web designer,” they explain. Once Smith’s petition is filed, it will be up to the Court to decide whether to step in to prevent Colorado from compelling this young businesswoman to use her artistic talents against her conscience. And that is encouraging, given the trend of recent decisions. Smith’s chances of a fair ruling by the Supreme Court, should it take up her case, have never been better.