Colorado is once again the battleground, this time in a case known as 303 Creative LLC v. Eleni. Graphic designer Lorie 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 same-sex wedding websites. 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.” Smith started 303 Creative, her web design business, 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 doesn’t want to design same-sex wedding websites and wants to post a message on 303 Creative’s website disclosing that she won’t be doing it. Smith says she serves customers of all different backgrounds and insists she discriminates based on the message requested, not the person requesting it — a key distinction that judges explored Monday. 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.”
Monday’s arguments
The court’s three liberal justices — Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor — briefed Kristen Wagoner, Smith’s counsel, on whether the websites should be considered speech by Smith or her clients and whether other businesses were to be allowed to refuse service on the basis of race, ethnicity or disability if a court ruled in its 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.” Waggoner, who leads the group Alliance Defending Freedom, responded that the speech is still Smith’s, comparing her service to that of a newspaper editor or ghostwriter: “What matters is what the objection is that it is being asked by the speaker to create … If you don’t think they should tell their story and what they’re asking you to do is tell their story, then you don’t have to do that.” Judge Neil Gorsuch posed a hypothetical to Colorado Solicitor General Eric Olson about a freelance writer who refuses to write speeches or press releases for clients of a different faith, asking whether that should be allowed and how that scenario differs from Smith’s case. “We have a person who says she will sell and she sells to everybody. All the sites. But she won’t sell a site that requires her to express a view about marriage that she finds offensive to her religious beliefs,” Gorsuch said. . “What’s the difference between the two cases? I’m having trouble understanding.” Weiser responded that “the company chose to say that they will provide matrimonial sites in general … here they are blocking a service to someone based” on their sexual orientation, regardless of the site’s content. “But that’s their religious belief? You can’t change their religious belief, right? You protect religious belief under the law, right? That’s one of the protected characteristics,” Gorsus said. On further questioning, Olson added that “the company will refuse to provide the same identical speech to a customer solely because of who they are,” in violation of the law.
Known issue
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 owned 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 could now be the vehicle to address this issue. Web designer Lorie Smith is seen in her office Monday, Nov. 7, 2022, in southwest Littleton, Colorado. David Zalubowski / AP “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. 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. Waggoner, Smith’s attorney, told CBS News before Monday’s arguments that narrowing the question allows the Supreme Court to “more easily get to the heart of the matter” of whether the government can compel people to say things that they don’t believe. “No one should be forced to express something that violates their beliefs on any matter,” he said. “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, takes the position that “they have the power to compel an artist to create custom expression, . . .
