Colorado is once again the battleground in the latest court case brought by graphic designer Lorie Smith. Smith, like bakers Jack Phillips and Aaron and Melissa Klein, and florist Barronelle Stutzman before her, is a Christian business owner who says her religious beliefs prevent her from creating custom websites for same-sex marriage. But her stance could violate Colorado’s public accommodations law, which prohibits businesses open to the public from denying service based on sexual orientation and announcing their intent to do so. Smith argues that the law violates her First Amendment rights, saying the state is forcing her to express a message she disagrees with. “If the government can censor and compel my speech, they can censor and compel anyone’s speech,” he told CBS News before the arguments. “We should all be free to live and work consistently with our deeply held beliefs.” On Monday, the court’s three liberal justices — Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor — briefed Kristen Wagoner, Smith’s counsel, on whether her web-building work should count as her speech and whether other businesses should be allowed to refuse service on the basis of race, ethnicity or disability if a court rules in their favor. “I keep looking at all the mockups and they all relate to what [a couple] does,” Sotomayor said, referring to examples of Smith’s websites. “I don’t understand, how is that your story? It’s their story.” Wagoner replied that the speech would still be Smith’s, comparing her service to that of a newspaper editor or ghostwriter: “What matters is what objection the speaker is being asked to make. . . . If you don’t believe that they should tell their story, and what they’re asking you to do is tell their story, then you don’t have to.” The Supreme Court last faced a case at the crossroads of the First Amendment and LGBTQ rights in 2018, in a dispute involving Phillips, who refused to make a cake for a same-sex wedding a decade ago. The baker, who owns Masterpiece Cakeshop in Lakewood, Colorado, argued that the state’s public accommodations law requiring him to create a cake for a same-sex wedding would violate his right to free speech and religious freedom. The Supreme Court narrowly ruled for Phillips, finding that the Colorado Civil Rights Commission acted with hostility toward his sincerely held religious beliefs. But it left open the question of whether states like Colorado can, by applying their anti-discrimination laws, compel an artist to express a message they disagree with. Smith’s case, known as 303 Creative LLC v. Eleni, could now be the vehicle to address this issue. “No one should be forced to create artwork, customized expression, that goes against the core of who they are and what they believe. And that’s what Colorado does,” he said. Web designer Lorie Smith is seen in her office Monday, Nov. 7, 2022, in southwest Littleton, Colorado. David Zalubowski / AP Smith started her web design business, 303 Creative, about a decade ago and insists that every website she creates is unique and one-of-a-kind. With plans to expand her business to create custom wedding websites, Smith does not want to design same-sex wedding websites because same-sex marriage violates her religious beliefs, and she wants to post a message on 303 Creative’s website revealing that she will not do it. Smith says she serves clients from all different backgrounds and insists she discriminates based on the message requested, not the person requesting it. If, for example, a wedding planner asked Smith to create a website for gay marriage, she would still object to the request. “What’s unfortunate is that what I’m asking the court to protect is everyone’s right to speak freely,” Smith said. “This not only protects me, it protects the LGBT web designer who should not be forced to communicate messages that conflict with their deeply held beliefs, and the right to speak freely is guaranteed to all of us.” Smith filed a lawsuit in 2016 seeking to block enforcement of the state’s public accommodations law against her. A federal district court sided with Colorado, and a divided panel of the U.S. Court of Appeals for the 10th Circuit affirmed, concluding that the law is narrowly tailored to Colorado’s compelling interest in ensuring equal access to publicly available goods and services. Chief Judge Timothy Tymkovich, who dissented, said the state law coerced and suppressed Smith’s speech and violated her right to the free exercise of religion. “Although I loathe to quote Orwell, the majority opinion supports substantial government intervention in matters of speech, religion, and conscience,” he wrote. Smith appealed to the Supreme Court in September 2021, asking the justices to decide whether applying an anti-discrimination law like Colorado’s to compel an artist to speak contrary to his religious beliefs violates free speech clauses or free exercise of the First Amendment. The high court agreed in February to hear Smith’s case, but limited the question to the issue of free speech. Kristen Waggoner, who heads the Alliance Defending Freedom and will argue the Supreme Court case on Smith’s behalf, said narrowing the question allows the Supreme Court to “more easily get to the heart of the matter” of whether the government it can make people say things they don’t believe. “No one should be forced to express something that violates their beliefs on any subject,” he told CBS News. “Speakers don’t lose their rights just because they’re trying to make a living.” Waggoner, who also argued Phillips’ case five years ago, noted that public accommodation laws and the First Amendment have “co-existed for many years” while protecting speakers’ rights. Twenty Republican-leaning states signed an amicus brief supporting Smith, telling the court that their interpretation of public accommodation laws shows how to strike a balance between protecting artists’ speech by allowing message-based objections and preventing discrimination at the market. “Never in our history has the government ever coerced ideological, political or religious speech,” Wagoner said. “That would be the first time.” But Colorado officials who defend the law say it’s necessary to ensure customers can participate equally in the marketplace. Taking Smith’s position, Attorney General Phil Weiser told the court in a filing, “it would include not only a business’s objections to serving certain customers motivated by sincerely held religious beliefs, but also objections motivated by ignorance, caprice, fanaticism, whimsy and more. including outright expressions of racial, sexist or anti-religious hatred’. The state also argues that allowing a business to refuse service would break with the nation’s long tradition of protecting customers’ ability to purchase goods and services regardless of religion, race, disability and other protected characteristics. The Biden administration supports Colorado in the dispute and has told the Supreme Court that the First Amendment does not grant the right to a blanket exemption from a law that protects against discrimination. “Public accommodation laws, therefore, sometimes incidentally require owners of expressive businesses to act in a manner inconsistent with their deeply held beliefs,” the Justice Department said in a court filing. “But under this Court’s precedents, these collateral burdens are a permissible—indeed, unquestionable—effect of a decision to offer expressive goods or services to the public.” Both Smith and Colorado warn that a ruling in favor of their respective rivals could be damaging and far-reaching. For Smith and the groups supporting her in the controversy, a ruling in favor of Colorado would force any artist or speaker to express messages they disagree with, they say. “Many [of these laws] they have political ideology, political beliefs, as a protected class, meaning a Democrat would have to write a slogan for a Republican, or a Muslim might have to write something for an evangelical church,” Wagoner said. “It really goes beyond the issue of marriage, and hopefully the court will reaffirm a very basic principle that free speech is for everyone.” Colorado, he said, is taking the position that “they have the power to compel an artist to create custom expression, and that should deeply concern all Americans, that a government would be able to punish those it disagrees with because it disagrees with their point of view on a subject”. But Weiser and the states that support Colorado warn that a decision in favor of Smith would open the door to more discrimination. “Every day, Coloradans buy the goods and services they need from businesses that open their doors to the public. Many of these goods and services have deep meaning for their buyers: flowers for a spouse’s funeral, family photos to celebrate the arrival of a baby, custom suit to start a new job,” he told the court. “These customers are not seen, loved or adored in the same way. But all expect to participate in the public market as equals. A business that rejects these customers because of who they are hurts them as they try to express their grief. their joy and to improve their lives”. Twenty-one Democratic-leaning states and the District of Columbia said in their own filing with the Supreme Court that joining Smith could result in members of protected groups being discriminated against in a “broad area” of the market. They wrote:…
