Prior to the U.S. Supreme Court ruling in favor of a Colorado baker who refused to make a wedding cake for a gay couple, a woman named Lorie Smith had a civil action pending in federal court that raised similar legal questions as those in the Masterpiece Cakeshop case.
Because of the close proximity to the facts of the Masterpiece Cakeshop case, proceedings were delayed until the Supreme Court set precedent; now, the case is among the first to put that precedent into practice. The case, 303 Creative v. Colorado Civil Rights Commission, involved Smith, a graphic designer who was looking to build wedding websites as part of her business. Smith wanted to post a note on her business site stating that she would not create pages for same-sex couples because it would violate her faith.
Smith’s draft of this particular note read, in part, “I am personally convicted that He wants me — during these uncertain times for those who believe in biblical marriage — to shine His light and not stay silent… These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman.”
Smith never posted the note, acknowledging it would have violated the Accommodation and Communication Clauses of the Public Accommodation Statute, and instead sued in September 2016. In doing so, Smith challenged the constitutionality of two clauses of the Colorado Revised Statute. The first clause states that it is discriminatory and unlawful “for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.” The second clause reads similarly and applies to published notices.
The case proceeded. But following briefings on a motion by the plaintiff for summary judgment, the U.S. Supreme Court granted certiorari in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The district court recognized the similarity in the cases: “The issues to be determined by the Supreme Court in that case are whether compelling the baker to provide services for a same-sex wedding under the Public Accommodation Statute violates the Free Speech Clause or Free Exercise Clause of the First Amendment, which are essentially identical to two of the issues presented in this action.” District Judge Marcia S. Krieger did not reach the merits of the case; instead, Krieger denied the plaintiff’s motion for preliminary injunction and summary judgment “with leave to renew” pending the Supreme Court’s decision in the Masterpiece case.
Smith nevertheless appealed her case to the 10th Circuit Court of Appeals. By the time the 10th Circuit took up the case, however, the Supreme Court had issued its Masterpiece ruling. Consequently, the 10th Circuit found it no longer had jurisdiction to hear the appeal, and accordingly granted the state’s motion to dismiss.
In the decision, Circuit Judge Nancy Moritz noted, “After all, the district court expressly declined to reach the merits of the plaintiffs’ arguments and granted the plaintiffs leave to renew their motion once the Supreme Court decided Masterpiece Cakeshop. Nevertheless, the plaintiffs argue that we had appellate jurisdiction while the stay was in effect to the extent that the stay ‘had the ‘practical effect’ of refusing [the] plaintiffs’ injunction.”
“The appellate courts don’t have the leisure of picking and choosing the cases they want; everyone has the right of appeal,” said Craig Konnoth, associate professor of law at the University of Colorado Law School. “They’ve got fairly full dockets, and so, they got around to this case at the end of the summer — and I think everyone knew that the cakeshop case would have come out.”
The 303 Creative case now heads back to the district court.
Jonathan Scruggs, senior counsel with Alliance Defending Freedom, which is representing Smith, said he’s confident in the case moving forward. “The court didn’t rule against us on any substantive matter; now we’re right back at the district court,” he said. “If you put all the pieces together, Colorado is not taking tolerant positions toward people with the religious beliefs of Jack [Phillips of Masterpiece Cakeshop] and Lori.”
The Masterpiece ruling, Konnoth noted, did not speak directly to the issues in this case. “However,” he said, “the Supreme Court went out of its way in dicta to recognize the importance of protection for LGBT Coloradans in public accommodations — I think reading between the lines of the Court’s decision would lead the district court to conclude that [Colorado Anti-Discrimination Act] remains valid.”
— Chris Outcalt