A federal appeals court has ruled against a graphic designer who sued the state of Colorado in an attempt to overturn a law prohibiting anti-LGBTQ discrimination in public accommodations.
Lorie Smith, the owner of 303 Creative, creates graphic designs and websites for houses of worship, political candidates, and weddings, as well as other clients. She claims she will do work for LGBTQ clients, but that her religious beliefs prevent her from creating custom wedding websites for same-sex nuptials or “promoting events, products, services, or organizations that are inconsistent with my religious beliefs,” according to the company’s website.
In September 2016, Smith enlisted the help of the anti-LGBTQ legal group Alliance Defending Freedom and filed a lawsuit challenging the Colorado Anti-Discrimination Act, which prohibits discrimination against various groups, including LGBTQ people, in places of public accommodation.
Her lawsuit was dismissed in May 2019, on the grounds that she had filed suit before the state had taken any action against her — or before she had even been asked to create a website for a same-sex couple — and thus, had no grounds to sue.
In September 2019, a federal district court ruled against Smith, finding that her proposal to post a statement outlining her objection to promoting same-sex weddings “proposes an unlawful act because it proposes to do something — deny services to same-sex couples — that a different statute, the Accommodations Clause, prohibits.”
Smith appealed that decision, but on Monday, a three-judge panel for the 10th U.S. Circuit Court of Appeals rejected her appeal, arguing it had a responsibility to protect the “dignity interests” of marginalized groups protected under the nondiscrimination law.
In its ruling, the court ruled 2-1 that businesses that open themselves up to the public must provide services for same-sex marriages if they offer the same services for opposite-sex weddings. Writing for the court, Senior Judge Mary Beck Briscoe found that the Accommodation Clause of Colorado’s nondiscrimination law is “narrowly tailored to Colorado’s interest in ensuring ‘equal access to publicly available goods and services.'”
“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,” Briscoe wrote.
“Excepting Appellants from the Accommodation Clause would necessarily relegate LGBT consumers to an inferior market because Appellants’ unique services are, by definition, unavailable elsewhere,” Briscoe continued. “…To be sure, 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. Thus, there are no less intrusive means of providing equal access to those types of services.”
Briscoe added that while a diversity of faiths “enriches” society, “a faith that enriches society in one way might also damage society in other, particularly when that faith would exclude others from unique goods or services.”
“In short, appellants’ free speech and free exercise rights are, of course, compelling. But so too is Colorado’s interest in protecting its citizens from the harms of discrimination,” she concluded.
The law upheld by the 10th Circuit is the same law that was challenged by Jack Phillips, the proprietor of the Lakewood-based bakery Masterpiece Cakeshop, in 2018. The case, which went all the way to the U.S. Supreme Court was ultimately decided, on narrow grounds, in Phillips’ favor, with the high court finding that the Colorado Civil Rights Commission had not taken seriously Phillips’ concerns that being compelled to bake a cake for a same-sex wedding violated his religious beliefs opposing homosexuality and same-sex marriage.
Alliance Defending Freedom balked at the decision, saying in a statement that Smith will appeal the 10th Circuit’s decision, which the organization claims violates her First Amendment right to freedom of religion, as well as freedom of speech.
“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 Senior Counsel and Vice President of Appellate Advocacy John Bursch said in a statement. “Colorado cake artist Jack Phillips has been harassed for years; Washington floral artist Barronelle Stutzman stands to lose nearly everything she owns; and now Lorie Smith is being told that she must speak views she opposes and can’t post about her beliefs on her own business website. How many more creative professionals will have to suffer before they receive recognition of their constitutionally protected freedoms — the rights they have always had in this country?”
Lambda Legal, which submitted a friend-of-the-court brief calling on the appeals court to uphold the Colorado nondiscrimination law, praised the 10th Circuit’s decision.
“This is a tremendous ruling that properly situates our cherished freedoms of speech and religion among the important rights guaranteed by the U.S. Constitution, while also understanding that the State of Colorado has a compelling interest and responsibility to end discrimination in the commercial sphere,” Jennifer Pizer, senior counsel at Lambda Legal, said in a statement. “As we explained in our friend-of-the-court brief to the U.S. Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission, this really isn’t about cake or websites or flowers. It’s about protecting LGBTQ people and their families from being subjected to slammed doors, service refusals, and public humiliation in countless places — from fertility clinics to funeral homes, and everywhere in between.
“Make no mistake, this was another attempt by Alliance Defending Freedom (ADF) to chip away at hard-won civil rights secured for LGBT people and their families,” Pizer added. “But the appellate court today saw through ADF’s transparent and continuing effort to secure a ‘free to discriminate’ card to exempt 303 Creative from the laws all other Colorado businesses are expected to follow. The stakes were higher than many people realized. Had ADF succeeded, that federal constitutional ‘free to discriminate’ card also could have been used by all sorts of businesses to excuse turning anyone away due to their race, color, sex, ethnicity, religion, disability or anything else now covered by state or federal law in any of the states in the Tenth Circuit: Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.”
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