A three-judge panel of the U.S. Court of
Appeals for the 10th Circuit has ruled that a Christian web designer must
create websites that conflict with her religious views.
In a 2-1 decision released July 26th,
the circuit panel ruled against Lorie Smith and her web design company, 303
Creative, stating that they must provide services for same-sex marriages if
they offer said services for traditional weddings.
Smith filed a pre-enforcement legal
challenge in 2016 to the Colorado Anti-Discrimination Act (CADA), arguing that
the law would compel her to provide services that go against her religious
beliefs and is unconstitutional. At
issue was a plan to start building websites for weddings— but with the desire
to not provide those services for same-sex weddings due to religious objections
to the unions.
In 2017, a district court ruled that
Smith couldn’t challenge the law and upheld that decision in a subsequent
ruling.
Circuit Judge Mary Beck Briscoe, a
Clinton appointee, authored the majority opinion. The appeals court acknowledged that 303
Creative could face prosecution under CADA if they refused to build websites
celebrating same-sex weddings while offering such services for opposite-sex
weddings. Nevertheless, Briscoe
concluded in part that “CADA is a neutral law of general applicability, and
that it is not unconstitutionally vague or overbroad.” “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,” wrote
Briscoe. “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.”
Regarding the intentions of 303 Creative
to put a statement on its website explaining its refusal to create websites for
same-sex weddings, the majority opinion concluded that “Colorado may prohibit
speech that promotes unlawful activity, including unlawful discrimination.”
Lawyers for Smith say that the state has
placed a “gag” rule that prohibits designers and artists from expressing
religious views in the online marketplace about marriage that indicate someone
is “unwelcome, objectionable, unacceptable, or undesirable.”
“Having concluded that the 1st Amendment
does not protect Appellants’ proposed denial of services, we also conclude that
the 1st Amendment does not protect the Proposed Statement,” continued the
majority opinion. “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. 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 1st Amendment does
not protect.”
Tenth Circuit Chief Judge Timothy M.
Tymkovich, a George W. Bush appointee, authored a dissenting opinion. He argued 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,” wrote Tymkovich. “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.” Tymkovich contends that while “Colorado is
rightfully interested in protecting certain classes of persons from arbitrary
and discriminatory treatment,” the state should 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.” “CADA forces Ms. Smith to violate her faith on
pain of sanction both by prohibiting religious-based business practices and by
penalizing her if she does speak out on these matters in ways Colorado finds
‘unwelcome’ or ‘undesirable,’” he continued.
Attorney John Bursch of the nonprofit
legal group Alliance Defending Freedom, representing Smith, denounced the panel
decision and declared plans to appeal the ruling. “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,” 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.”
Critics of 303 Creative’s efforts
include Americans United for Separation of Church & State (AUSCS). The progressive advocacy group joined several
other groups in filing amicus briefs in 2020. “The sweeping exemption for religiously
motivated discrimination that 303 seeks so that it may deny equal service to
same-sex couples would necessarily also permit businesses to deny service to
people of the ‘wrong’ religion (or race, or sex, or any other characteristic
protected by the Act),” the AUSCS brief argues. “A ruling in 303’s favor would therefore
undermine, not strengthen, religious freedom by impairing the ability of the
people of Colorado to live as equal members of the community regardless of
faith or belief.”
In 2018, the U.S. Supreme Court (SCOTUS)
ruled against Colorado’s treatment of a Christian baker punished for refusing
to bake a cake for a same-sex wedding in defiance of the state’s discrimination
laws. However, the SCOTUS last month
refused to hear the case of a Washington florist who was punished for refusing
to provide floral arrangements for a same-sex wedding.
Rev. Dr.
Kenneth L. Beale, Jr.
Chaplain
(Colonel-Ret), U.S. Army
Pastor, Ft.
Snelling Memorial Chapel