Colorado’s attorney general is asking the U.S. Supreme Court to uphold the state’s anti-discrimination laws after a Denver-based graphic designer is requesting the right to turn away custom wedding website services for same-sex couples, according to a brief the AG’s office filed Friday with the U.S. Supreme Court.
This fall, the Supreme Court will hear the case filed by Lorie Smith, a Denver-based evangelical Christian web designer, who wants to expand her business 303 Creative to include wedding websites but because she opposes same-sex marriage, she does not want to design websites for same-sex weddings. She also wants to include a message on her website to explain her decision not to. Under Colorado law, public businesses are prohibited from discriminating against gay people and declaring their intent to do so.
The Court, which said in February it will hear the case, will decide whether the state’s public accommodation law violates a person’s free speech, when requiring a business to offer equal services to all customers.
Smith is free to decide which design services to offer and whether to design custom wedding websites that feature biblical passages or express her view that marriage is “a life-long union between one man and one woman,” the attorney general’s office said in its brief. But she must make the services available to everyone.
Under Colorado’s anti-discrimination laws, public businesses are prohibited to refuse customers based on their sexual orientation, race or religion, Attorney General Phil Weiser said Friday during a news conference.
“We know that in the past, people have been excluded from businesses, from access to goods and services because of their race, gender, religion and because of their sexual orientation or gender identity,” Weiser said. “That exclusion causes real harm, both to our state’s economic vitality, and our commitment and lived experience of equal treatment under the law.”
Smith argues that it is part of her “religious duty” to explain her religious beliefs about marriage on her website and with prospective clients, including why she feels she cannot design websites celebrating and promoting same-sex weddings.
She sued Colorado over its anti-discrimination law in 2016, hoping to block its enforcement. The U.S. District Court for the District of Colorado ruled against her in 2019 and when she appealed, the 10th Circuit upheld the court’s decision.
Smith claims the state law is violating her right to free speech. But the choice to serve or refuse a customer has never been protected under the First Amendment, Weiser said.
“That’s because discrimination is not expression, it’s illegal conduct,” he said.
If the Supreme Court were to side with Smith, the ruling could set a precedent that could lead to a range of loopholes to anti-discrimination law, potentially allowing discrimination against not just one’s sexual orientation, but a person’s religion, race or ethnicity, Weiser said.
“It would be a dangerous and very problematic step to walk back from it, and we believe that the Court will take seriously the consequences of any such action,” he said.
Smith has provided services to LGBTQ customers in the past, according to her lawyer, Jake Warner, but the government should not force artists, including Smith, to create websites that go against their beliefs.
“This case is about the right of every American to say what they believe without the fear of government punishment,” said Warner, with Alliance Defending Freedom, an Arizona-based, conservative, Christian advocacy group.
“We’re hopeful that the U.S. Supreme Court will rule for Lorie because a win for her would protect the freedom of all Americans, including those who disagree with Lorie on some of life’s biggest issues.”
The Supreme Court will review the case in its next term, which begins in October. The Court has not yet scheduled a date to hear the case.
This comes about four years after the Supreme Court heard the case of Colorado baker Jack Phillips who refused to make a custom cake for a same-sex couple, arguing that making the cake would violate his religious beliefs.
The case stemmed from a dispute in 2012 when Phillips, owner of Masterpiece Cakeshop in Lakewood, refused to make a wedding cake for Charlie Craig and David Mullins. The couple then filed discrimination charges with the Colorado Civil Rights Commission, claiming discrimination based on sexual orientation under the Colorado Anti-Discrimination Act.
After the civil rights agency ruled against Phillips, saying he had unlawfully discriminated against the couple, the cake shop owner brought the case to the Supreme Court. Phillips won a partial victory when the high court said that the Colorado commission acted with anti-religious bias against Phillips. But it did not rule on the larger issue of whether a business can invoke religious objections to refuse service to LGBTQ people.
While the cases are similar, Smith’s argument with her wedding websites is more closely aligned with free speech protections, said attorney Paula Greisen, who represented the gay couple in the Masterpiece Cakeshop Supreme Court decision.
“And the question really is: Is this new Supreme Court going to honor that precedent? Or is the Supreme Court going to start carving out lower levels of citizens and allow business owners to essentially pick and choose who they want to provide services, which is a very dangerous, slippery slope,” Greisen said Friday.
“It’s worrisome if we start to whittle away on these protections because I don’t know that there is a reasoned line of distinction between discrimination against the LGBTQ community and discrimination based on race,” she said. “I am worried.”
The Supreme Court’s decision to hear the Smith case highlights its appetite to revisit whether or not anti-discrimination laws of all kinds are limited by the First Amendment, said Scott Skinner-Thompson, a law professor at the University of Colorado Law School.
With a conservative majority in the Supreme Court, the chances the Court rules in favor of 303 Creative is likely and in turn, could gut existing anti-discrimination laws, said Skinner-Thompson, who teaches constitutional law, civil rights and sexuality and gender identity in the law.
“This is a court that’s poised to and ready to upend lots of established law,” he said, pointing to its decision in Dobbs vs. Jackson’s Women’s Health Organization, which undid the constitutional protection for abortion rights long protected under Roe vs. Wade.
“It really could undermine 50 years plus, almost 60 years, of civil rights legislation in this country,” he said. “So it’s not just the case of about same-sex marriage, it’s a case about all kinds of discrimination laws.”
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