A Denver-area web designer lost her challenge to Colorado’s anti-discrimination law earlier this week when the 10th Circuit Court of Appeals concluded she could be forced to provide services for same-sex weddings or couples despite her religious objections.
On July 26, a three-judge panel held that Lorie Smith could be compelled under the Colorado Anti-Discrimination Act to make websites that celebrate same-sex marriage. Smith, owner of web design company 303 Creative, claims CADA violates her First Amendment rights to free speech and free exercise of religion by forcing her to create websites that she says are against her Christian beliefs.
Smith challenged two CADA clauses. The first, the “Accommodation Clause,” makes it unlawful for a business to refuse the full and equal enjoyment of services to someone because of their sexual orientation. According to Smith, this clause would force her to create wedding websites for same-sex couples.
In a 2-1 decision, the court concluded that the clause does compel Smith to create websites she otherwise would not. However, the majority concluded that the Accommodation Clause satisfies the strict scrutiny test required for a law that compels speech. “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,” said the majority opinion authored by Senior Judge Mary Beck Briscoe.
While LGBT consumers may be able to find someone else to design their wedding websites, Briscoe wrote, allowing 303 Creative an exemption to CADA would “relegate LGBT consumers to an inferior market” because the company offers “custom and unique” services unavailable elsewhere. The majority reasoned that a business offering custom goods and services is akin to a monopoly, which presents “unique anti-discrimination concerns.”
“It is not difficult to imagine the problems created where a wide range of custom-made services are available to a favored group of people, and a disfavored group is relegated to a narrower selection of generic services,” Briscoe wrote. “Thus, unique goods and services are where public accommodation laws are most necessary to ensuring equal access.”
The second CADA clause at issue, the “Communication Clause,” makes it unlawful to publish any communication indicating that service will be refused or that a person’s patronage or presence will be unwelcome due to sexual orientation. Smith claims she wanted to add a statement to her company website explaining that she couldn’t create content inconsistent with her religious convictions, but CADA’s Communication Clause prevented her from doing so.
The majority rejected Smith’s challenge to the Communication Clause because her proposed statement promotes an illegal activity — denying service based on sexual orientation — and is therefore not protected by the First Amendment. Smith also failed to convince the panel that the Communication Clause is unconstitutionally overbroad or that CADA violates the free exercise of religion clause.
Chief Judge Timothy Tymkovich wrote a 50-page dissent in which he said the majority “endorses substantial government interference” in matters of speech, religion and conscience. “While everyone supports robust and vigorously enforced anti-discrimination laws,” he wrote, “those laws need not and should not force a citizen to make a Hobson’s choice over matters of conscience.”
By describing custom artists as a “monopoly of one,” Tymkovich said, the majority “uses the very quality that gives the art value—its expressive and singular nature—to cheapen it.” He added that the majority’s position means the more unique a product is, the less First Amendment protection it has. “This is, in a word, unprecedented,” Tymkovich wrote. “And this interpretation subverts our core understandings of the First Amendment.”
During oral arguments in November, it was unclear whether the court would even reach the merits in the case as Smith appeared to face an uphill procedural battle. The state argued 303 Creative lacked standing and the dispute was not ripe because the threat of CADA enforcement against the company was largely hypothetical. Smith has yet to offer wedding-related services to any customer, gay or straight. She has not denied service to anyone based on sexual orientation nor has she posted her disclaimer explaining her wish to do so.
The district court dismissed Smith’s Accommodation Clause-related claims due to lack of standing and later dismissed the Communications Clause challenge for other reasons. But one thing all three 10th Circuit judges could agree on was that Smith has standing to bring a pre-enforcement challenge to CADA because she faces a credible fear of enforcement against her.
According to Alliance Defending Freedom, the conservative Christian organization representing 303 Creative, Smith plans to appeal the 10th Circuit’s decision. ADF also represented Masterpiece Cakeshop owner Jack Phillips in his U.S. Supreme Court challenge to CADA. Phillips, who refuses to make wedding cakes for same-sex couples, raised similar First Amendment arguments. While the Supreme Court ultimately ruled in favor of Phillips, it did so on narrow grounds, leaving key questions about the constitutionality of CADA unanswered.
One of the questions the Supreme Court justices grappled with in Masterpiece Cakeshop was whether baking a cake counts as speech or expression that would be protected by the First Amendment. 303 Creative could better tee up those constitutional questions since, as attorneys have noted, it is easier to argue that making a website is a form of protected expression.
Earlier this month, the Supreme Court declined to hear a similar case involving yet another ADF client. That case, Arlene’s Flowers v. Washington, involves a florist who refused to provide flowers for a gay couple’s wedding.