February 23, 2022 Philadelphia Gay News
The Supreme Court. (Photo: Scott Drake)
The U.S. Supreme Court decided February 22 to hear an appeal from a Colorado web designer. Lorie Smith, who objects to providing services for same-sex couples. At issue is the question of personal religious freedom versus laws banning discrimination on the basis of sexual orientation. The Tenth Circuit Court previously ruled against Smith in August 2021.
The specific question the justices agreed to decide in the new case is “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”
The court will hear the case, 303 Creative LLC v. Elenis, in October. Smith’s Colorado web design company, 303 Creative, claims it serves gay and lesbian customers, but limits its wedding-related services to heterosexual marriages. Smith says it is her intention to state that her company’s policy is due to her religious convictions.
Smith’s attorneys told the justices that Smith compares same-sex marriage to violence and sexual immorality, saying, “She cannot create websites that promote messages contrary to her faith, such as messages that condone violence or promote sexual immorality, abortion or same-sex marriage. Lorie respectfully refers such requests to other website designers.”
Colorado law specifically forbids any discrimination against gay and lesbian people by businesses open to the public. That same law bans statements such as the one Smith wants to put on her website that declare they discriminate against gay and lesbian people in their business practices.
Smith has not yet started her wedding business nor posted the proposed statement; her concern over breaking that law propelled her to sue to challenge it, saying it violated her rights to free speech and the free exercise of religion.
Colorado disagrees with the merits and premise of Smith’s suit.
Colorado attorney general Philip J. Weiser said the law is clear and suggests Smith is manufacturing a lawsuit for her own agenda. “The record contains no evidence,” Weiser wrote, “that anyone has asked the company to create a website for a same-sex wedding; that Colorado has threatened enforcement; or that any future wedding website would convey a message that would be attributed to the company.”
Weiser added that the Colorado law is constitutional. “Anti-discrimination laws appropriately apply to prohibit commercial actors from discriminating in commercial transactions,” said Weiser, “even though those commercial actors remain free to express their view on such laws in public discourse.”
But Weiser stressed that “prohibiting companies from displaying what would amount to ‘Straight Couples Only’ messages is permissible, because it restricts speech that proposes illegal activity and is therefore unprotected by the First Amendment.”
The U.S. Court of Appeals for the Tenth Circuit, in Denver, upheld the Colorado law, noting, “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,” Judge Mary Beck Briscoe wrote for the majority.
Briscoe added, “LGBT consumers may be able to obtain wedding-website design services from other businesses; yet, LGBT consumers will never be able to obtain wedding-related services of the same quality and nature as those that appellants offer.”
Briscoe also said that “Colorado may prohibit speech that promotes unlawful activity, including unlawful discrimination.”
The dissenting voice on the panel was Chief Judge Timothy M. Tymkovich, who said “the majority takes the remarkable — and novel — stance that the government may force Ms. Smith to produce messages that violate her conscience. It seems we have moved from ‘live and let live,’ to ‘you can’t say that.’”
Alliance Defending Freedom, which describes itself as an “American conservative Christian nonprofit advocacy group,” is representing Smith. The group is already fundraising off the Supreme Court decision to hear the case. In a banner statement with a photo of a smiling Smith, the organization writes, “ADF Headed to SCOTUS for Freedom of Speech Case! Great news for Lorie Smith, owner of 303 Creative! U.S. Supreme Court will hear a crucial case focused on creative expression and the First Amendment! We need your help to support Lorie’s case! Will you give today to support her efforts in the U.S. Supreme Court?”
An attorney for the organization, Kristen Waggoner, said in a statement that “the anti-discrimination law violates the First Amendment’s protection of free speech” and “Colorado has weaponized its law to silence speech it disagrees with, to compel speech it approves of and to punish anyone who dares to dissent.”
Jennifer C. Pizer, the Law and Policy Director for Lambda Legal, said in a statement that “The Supreme Court here has the opportunity to do what the justices should have done three-and-a-half years ago in Masterpiece Cakeshop v. Colorado Civil Rights Commission: Reaffirm and apply longstanding constitutional precedent that our freedoms of religion and speech are not a license to discriminate when operating a business. It is time once and for all to put to rest these businesses’ attempts to undermine the civil rights of LGBTQ people in the name of religion.”
Pizer said Smith’s case is part of an evangelical crusade against LGBT+ civil rights, stating, “We are witness yet again to the unrelenting anti-LGBTQ crusade being waged by self-described Christian fundamentalist legal groups aiming to chip away at the hard-won gains of LGBTQ people by carving out swaths of territory where discrimination can flourish. The constitutional protections for religious freedom and free speech were never intended as weapons of discrimination for those doing business with the general public.”
She added, “More than fifty years ago, the U.S. Supreme Court firmly condemned use of personal freedoms to excuse businesses’ discrimination. But the justices’ decision in Masterpiece Cakeshop lacked that clarity and invited discrimination. The Court can and should clear up that confusion by upholding the well-reasoned decision of the Tenth Circuit.”
In the lower court ruling, Smith’s case had a similar outcome to the 2018 Colorado case of baker Jack Phillips and Masterpiece Cakeshop. In that case Phillips refused to design a custom wedding cake for a gay male couple based on Phillips’ religious beliefs. The Colorado Civil Rights Commission found that the bakery had discriminated against the couple and issued specific orders for the bakery. As in Smith’s case, the appellate courts agreed with the state’s anti-discrimination law.
Phillips pursued his case to the U.S. Supreme Court, where in a 7–2 decision, the Court ruled on narrow grounds that the Commission did not employ religious neutrality, thus violating Masterpiece owner Phillips’ rights to free exercise, and reversed the Commission’s decision.
Because the Supreme Court did not rule in Masterpiece Cakeshop on the larger issue of whether a business can invoke religious objections to refuse service to LGBTQ people, these cases continue to come before the court.
The importance of Fulton to religious freedom issues was signaled by the volume of opinions written in the case. Justices Breyer, Sotomayor, Kagan, Kavanaugh and Barrett joined Chief Justice John Roberts, who wrote the ruling in the case. That the case was also unanimous, with the three liberal justices concurring with the conservative majority, speaks to the complex issues of First Amendment rights that the Supreme Court must address with regard to both religious freedom and LGBT+ rights.
A 2020 survey of newlyweds by WeddingWire.com revealed that 79% of couples created a website for family and friends to track the nuptials.
