Web designer Lorie Smith argues that a Colorado’s anti-discrimination law tramples her free speech rights
Colorado #Colorado
The Supreme Court will once again turn its attention to LGBTQ rights and religion on Monday when it hears a case brought by a web designer who, for religious reasons, does not want to design wedding websites for same-sex couples.
In 303 Creative v. Elenis, designer Lorie Smith argues that a Colorado nondiscrimination law violates her free speech rights by preventing her from being upfront about her religious beliefs and forcing her to create websites that imply support for gay marriage.
“Colorado is censoring and compelling my speech,” she recently told The Associated Press. “Forcing me to communicate, celebrate and create for messages that go against my deeply held beliefs.”
Smith has said that she is willing to work with LGBTQ customers in non-wedding contexts and has done so in the past.
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Smith and her supporters believe a win for her would benefit anyone in need of free speech protections, but others have a very different view of the case.
Louise Melling, the ACLU’s deputy legal director, said during a press call Friday that 303 Creative is about ensuring access to goods and services, not forced speech.
“The ACLU firmly believes that states can’t compel artists or anyone else to share messages. … If Colorado here was saying what websites (business owners) had to make or what the websites had to say, the ACLU would really have a problem with it,” she said. “But all this law says is that, for businesses, if you sell something, you have to sell it to everyone regardless of who they are.”
Melling worries that a ruling for Smith would make it harder for gay and lesbian Americans to access goods and services of many kinds.
The Supreme Court will have to decide whether a civil rights law protecting LGBTQ customers violates the free speech rights of religious business owners. In doing so, they will likely struggle to define what types of commercial activities should count as speech, just as they did in a similar case five years ago.
Ahead of oral arguments on Monday, here’s a look at the background of the case and what’s at stake in the Supreme Court’s eventual ruling.
What’s the background of the case?
Smith filed the lawsuit in September 2016 after realizing that state law interfered with her plans to expand her web design business into the wedding industry.
As a self-described nondenominational evangelical who opposes same-sex marriage for religious reasons, she planned to refuse to design wedding websites for gay couples, but knew that such an approach would violate the Colorado Anti-Discrimination Act.
In her suit, Smith said the act violated her free speech and religious exercise rights, arguing that it prevented her from running her business according to her beliefs and openly sharing her beliefs on her company’s website. She explained in legal documents that she felt the state was trying to force her to share a message on marriage that she didn’t support.
In response, Colorado officials argued that the anti-discrimination policy was designed with the goal of protecting vulnerable communities, not forcing speech or trampling religious rights. The state has a compelling interest in preventing discrimination on the basis of sexual orientation, they said.
Smith eventually lost at the district and circuit levels. Judges accepted the state’s argument that the Colorado Anti-Discrimination Act could interfere with business owners’ activities in the service of preventing discrimination.
“(Smith’s) free speech and free exercise rights are, of course, compelling. But so too is Colorado’s interest in protecting its citizens from the harms of discrimination. And Colorado cannot defend that interest while also excepting (Smith) from (the Colorado Anti-Discrimination Act),” says the July 2021 ruling from the 10th U.S. Circuit Court of Appeals.
How did the Supreme Court get involved?
Smith appealed to the Supreme Court last fall and asked the justices to consider the interplay between nondiscrimination law and the First Amendment.
“This Court’s review is urgently needed to reaffirm that the government cannot compel artists to speak government-approved messages,” the appeal said.
In February, the Supreme Court agreed to consider only the free speech piece of the case. In other words, the justices will not weigh whether Colorado’s nondiscrimination law violates religious freedom protections.
What’s at stake in 303 Creative?
On a basic level, the Supreme Court’s eventual ruling will determine whether Smith can move forward with her plans to begin designing wedding websites. But stakeholders, including religious leaders and LGBTQ rights advocates, are much more concerned about how the case will affect the future of nondiscrimination law.
Smith and her supporters argue that a win for Colorado officials would allow policies like the Colorado Anti-Discrimination Act to trump other important protections, harming people of faith in the process. Business owners who don’t support same-sex marriage would have to choose between living out their beliefs and thriving in their careers, claims a brief from a group of religious organizations, including The Church of Jesus Christ of Latter-day Saints.
Smith offered an even broader argument in her recent interview with The Associated Press. She argued that any and all creative artists running businesses would suffer if the Supreme Court rules against her.
“I don’t think I really have another choice than to stand up not only for my right but the rights of others,” she said. “That includes myself as an artist and it also includes the LGBT web designer who should not be forced to create and design messages that oppose same sex marriage.”
Smith’s opponents, on the other hand, fear that a ruling for the web designer would weaken nondiscrimination laws across the country and cause widespread harm. The Supreme Court shouldn’t put people in the position of having to call ahead to stores to see if they will be served, said Mary Bonauto, senior director of civil rights and legal strategies for GLBTQ Legal Advocates & Defenders, during the Friday press call.
Creating exemptions for religious business owners would “create a serious stigma,” Bonauto said.
A ruling for Smith could also create chaos in the legal landscape by leading more and more business owners to present their work as a form of speech, Melling said.
“This is not about the First Amendment. This is about objecting to LGBTQ equality,” she said.
How has the Supreme Court ruled in similar cases?
The Supreme Court heard a vey similar case five years ago, in December 2017. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the justices were asked to decide whether a Colorado baker could refuse to design a wedding cake for a same-sex couple.
Like 303 Creative, Masterpiece Cakeshop centered on tension between nondiscrimination law and the First Amendment. The baker, Jack Phillips, argued that Colorado officials were trying to force him to share a message of support for same-sex marriage and thereby violating his religious freedom rights.
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During oral arguments, some justices fretted over whether it was possible to exempt a Christian baker from a nondiscrimination law without undermining similar policies across the country.
“The reason we’re asking these questions is because obviously we want some kind of distinction that will not undermine every civil rights law,” said then-Justice Stephen Breyer at the time.
In the end, the Supreme Court sidestepped the core questions raised by the case and based their decision on the conduct of Colorado officials rather than the content of Colorado policy. They said officials had disrespected Phillips’ beliefs.
“When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires,” wrote then-Justice Anthony Kennedy in the majority opinion.
What will happen during oral arguments Monday?
At oral arguments for 303 Creative, attorneys for Smith and for the state of Colorado will have an opportunity to explain their view on whether the Colorado Anti-Discrimination Act violates the Constitution’s free speech protections. They’ll have to answer questions from most if not all of the nine justices, who often reveal their preconceived notions about the case through their question wording.
U.S. Solicitor General Elizabeth Prelogar will also speak, since the justices agreed with the Biden administration’s claim that the federal government has a significant state in the case.
Arguments begin at 10 a.m. EST. C-SPAN will broadcast a live audio feed of the proceedings.
The Supreme Court’s eventual ruling in the case is expected to be released by the end of June.