A circuit court judge has ruled against a Christian web designer who was concerned that Colorado’s Anti-Discrimination Act could be used to compel her to create websites for same-sex weddings.
Lorie Smith, the owner of 303 Creative, sought a pre-enforcement legal challenge in 2016 out of concerns that she could be forced by the CADA to design websites for same-sex weddings, which she opposes on the basis of her biblical faith.
While Smith, like Colorado baker Jack Phillips, is happy to work with LGBT customers, she sought clarification from the court that she had the right to decline to provide her artistic creativity towards the celebration of same-sex unions.
Circuit Judge Mary Beck Brisco acknowledged that “diversity of faith and religious exercise” like Smith’s “enriches” society, yet ruled that her “compelling” prerogative to exercise her First Amendment rights were not enough to protect her from prosecution under CADA.
“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,” the judge wrote in her majority opinion.
“When regulating commercial entities, like Appellants, public accommodations laws help ensure a free and open economy. Thus, although the commercial nature of Appellants’ business does not diminish their speech interest, it does provide Colorado with a state interest absent when regulating noncommercial activity.”
As for Smith’s desire to include a statement on her website on why she would decline to create same-sex weddings, the judge wrote that “Colorado may prohibit speech that promotes unlawful activity, including unlawful discrimination.”
“Having concluded that the First Amendment does not protect Appellants’ proposed denial of services, we also conclude that the First Amendment does not protect the Proposed Statement,” the majority opinion also stated.
“Parts of the Proposed Statement might not violate the Accommodation Clause, such as those parts expressing Appellants’ commitment to their clients or Ms. Smith’s religious convictions,” the judge continued. “Yet, the Proposed Statement also expresses an intent to deny service based on sexual orientation — an activity that the Accommodation Clause forbids and that the First Amendment does not protect.”
The dissenting judge, Chief Judge Timothy M. Tymkovich, disagreed, writing in his opinion that “the Constitution protects Ms. Smith from the government telling her what to say or do.”
“But the majority takes the remarkable — and novel — stance that the government may force Ms. Smith to produce messages that violate her conscience,” he stated.
“In doing so, the majority concludes not only that Colorado has a compelling interest in forcing Ms. Smith to speak a government-approved message against her religious beliefs, but also that its public-accommodation law is the least restrictive means of accomplishing this goal. No case has ever gone so far.”
He argued that while “Colorado is rightfully interested in protecting certain classes of persons from arbitrary and discriminatory treatment,” the state must not “turn the tables on Ms. Smith and single out her speech and religious beliefs for discriminatory treatment under the aegis of anti-discrimination laws.”
The U.S. Supreme Court sided with Phillips in 2018, and although they fell short of affirming his First Amendment rights to decline to provide his cakes for same-sex weddings, they ruled that the state of Colorado had treated him with discriminatory hostility as a Christian.
The Alliance Defending Freedom, which is representing Smith, has vowed to appeal to the high court.
“The government should never force creative professionals to promote a message or cause with which they disagree. That is quintessential free speech and artistic freedom,” ADF attorney John Bursch said in a statement.
“Lorie is happy to design websites for all people; she simply objects to being forced to pour her heart, imagination, and talents into messages that violate her conscience.”
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