The 10th Circuit Court of Appeals on Nov. 16 heard a First Amendment challenge to the Colorado Anti-Discrimination Act that takes up many of the questions left unanswered by the U.S. Supreme Court’s narrow ruling in the Masterpiece Cakeshop case.
Plaintiff Lorie Smith, owner of web design company 303 Creative, argues CADA violates her rights to free speech and religious exercise by forcing her to express messages that conflict with her religious views on same-sex marriage. Smith claims CADA’s Accommodation Clause would force her to make wedding websites for same-sex couples, while its Communication Clause prevents her from adding a disclaimer to her company website explaining that she cannot create websites that are inconsistent with her religious views.
Representing 303 Creative, Kristen Waggoner of Christian conservative group Alliance Defending Freedom argued Smith’s refusal to create same-sex wedding websites is based on the content of such sites rather than the customer’s protected status. When asked whether Smith would refuse a request by a straight wedding planner to create five mockup wedding sites to show to potential clients — four featuring different-sex couples and one showing a same-sex couple — Waggoner answered that she would.
Waggoner said her position is supported by the 1995 U.S. Supreme Court case Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston. In Hurley, the court ruled that private parade organizers had the right to determine the message they convey and could not be forced to allow an LGBT group to participate.
In 2017, Waggoner argued a similar case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, before the U.S. Supreme Court. However, the high court avoided ruling on the constitutionality of CADA, finding instead that the cake shop owner’s First Amendment rights were violated because the CCRC showed hostility toward his religious beliefs.
Colorado Solicitor General Eric Olson argued that CADA regulates conduct, not speech, by prohibiting businesses from discriminating against those who belong to a protected class. Therefore, the law doesn’t violate the First Amendment, according to Olson, citing a different U.S. Supreme Court case, Rumsfeld v. Forum for Academic and Institutional Rights.
Chief Judge Timothy Tymkovich asked Olson whether Smith’s decision to refuse customers is due to their sexual orientation or because of their message. Olson responded it’s due to their sexual orientation and used the example of a couple, Alex and Taylor, who want a text-only website that says, “celebrate our joy.” Smith had said she would create the website if Alex and Taylor were an opposite-sex couple, Olson said, but would not if they were a same-sex couple.
Olson also argued that Smith lacks standing because she has yet to offer wedding websites to any customer. Judge Mary Beck Briscoe noted that plaintiffs may bring a pre-enforcement challenge to a law if there is a credible threat of prosecution and asked Olson what it would take to establish that credible threat.
“I think it would take, at minimum, an actual customer,” Olson said, adding Smith would then have to turn down the customer due to her religious beliefs. “I think much of what we heard during [Waggoner’s] argument illustrates why this case is not ripe for review. These are all hypothetical uncertainties about what would happen.”