The U.S. Supreme Court will hear a Colorado web designer’s appeal of a 10th Circuit decision that, under the Colorado Anti-Discrimination Act, she says compels her to build websites for same-sex couples despite her religious beliefs.
In its list of orders on Feb. 22, the high court agreed to hear one question brought up in 303 Creative LLC v. Aubrey Elenis: Does applying public accommodation laws that compel an artist to speak or stay silent violate the First Amendment’s free speech protections?
The case raises questions left unanswered by the U.S. Supreme Court’s narrow 2018 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which also challenged CADA. The Masterpiece case arose when Jack Phillips declined to bake a cake for a same-sex couple, citing his religious beliefs.
In Masterpiece Cakeshop, the U.S. Supreme Court found the state Civil Rights Commission “showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating [Phillips’] objection” when holding a CADA exemption hearing. But the 7-2 split in favor of Phillips, which generated four different concurrences and a dissent, didn’t rule on keystone issues in the case including the relationship between CADA and freedom of speech and if a cake or other products are protected forms of speech.
Now, Denver-area business owner Lorie Smith is asking the high court to revisit many of the same issues after the 10th Circuit Court of Appeals ruled against her.
Smith is the owner and founder of 303 Creative, a website design company that hopes to eventually build sites for couples getting married. But according to Smith, two things are holding her back from building wedding websites: CADA and her religious beliefs that same-sex weddings “contradict God’s true story of marriage.”
Smith, represented by conservative Christian advocacy group Alliance Defending Freedom, would like to post a message on her website stating she will not build wedding sites for same-sex couples but says that she is not willing to break the law to do so.
The proposed message would read: “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. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage – the very story He is calling me to promote.”
Alliance Defending Freedom also represented Phillips in Masterpiece Cakeshop and has brought similar complaints challenging sexuality protections by public accommodation laws in other states. Southern Poverty Law Center considers Alliance Defending Freedom an anti-LGBT hate group based on homophobic and transphobic comments by its employees, attorneys and those affiliated with ADF, including comments that homosexuality is linked to pedophilia, that the existence of non-heterosexual people is dangerous to children and that legalizing same-sex marriage will harm society.
CADA, one of Colorado’s civil rights laws, bars discrimination by public accommodations and others based on sexuality, gender identity and other protected criteria. Within CADA are the accommodation clause, which prohibits the denial of “equal enjoyment of goods, services, facilities, privileges, advantages or accommodations of a place of public accommodation” based on sexuality, and the communication clause, which blocks communications that express an accommodation will not serve someone based on their sexuality. CADA carves out a few exceptions for certain sex-based restrictions and for public accommodations that are mainly used for religious purposes.
Smith brought a pre-enforcement challenge to CADA in U.S. District Court for the District of Colorado. Her initial challenge argued that the communication clause is facially overbroad and vague, violating the 14th Amendment and the Due Process Clause and that both clauses violate the First Amendment’s protection of free speech and free exercise.
A district court dismissed Smith’s complaints, and she appealed the ruling.
A split panel of the 10th Circuit Court of Appeals in July 2021 ruled that CADA compels Smith to build websites for couples, regardless of their sexuality and despite her Chrisitan views. While Smith hasn’t broken CADA, the court found she had standing to bring the pre-enforcement challenge since it creates a credible fear of enforcement against her. The 10th Circuit majority found the accommodation clause satisfied the strict scrutiny test for laws that compel speech.
The appeals court singled out the nature of custom-made products to justify its decision. While LBGT couples could find another website designer, the 10th Circuit majority reasoned, requiring them to do so would “relegate LGBT consumers to an inferior market” since Smith’s products are “custom and unique” services. A business that offers a custom good or services is akin to a monopoly, the majority of the 10th Circuit ruled, 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,” wrote Senior Judge Mary Beck Briscoe in the majority opinion. “Thus, unique goods and services are where public accommodation laws are most necessary to ensuring equal access.”
Since CADA makes Smith’s proposed website disclosure illegal, the 10th Circuit also rejected her freedom of speech appeal and was unconvinced by her appeals that CADA is overbroad and violates freedom of religion.
Chief Judge Timothy Tymkovich dissented from the majority of the 10th Circuit. In a 50-page explanation, Tymkovich said the characterization by the majority of custom-made businesses as “a monopoly of one” meant that the more unique a product is, the less First Amendment protection it has. “This interpretation subverts our core understanding of the First Amendment,” he wrote.
Smith asked the U.S. Supreme Court to hear her appeal in September 2021.
“If left in place, the Tenth Circuit’s decision will allow officials to compel Democratic speechwriters to plug Republican candidates and Muslim artists to create cartoon parodies of Allah,” wrote Smith in a reply brief for her certiorari petition.
Her petition asked the U.S. Supreme Court to consider two questions. The first is whether compelling artists to speak or not speak based on public accommodation laws violates freedom of speech and freedom to exercise religion under the First Amendment. The second is whether a public accommodation law that allows secular but not religious exemptions are applicable under the 1990 U.S. Supreme Court decision in Employment Division v. Smith and if so, if the earlier decision should be overruled.
In the petition, Smith called the 10th Circuit’s decision “deeply flawed” and urged the court to address different interpretations by lower courts around the relationship between public accommodation laws and the First Amendment.
While the Supreme Court did not take up all questions raised by Smith, it will hear the primary question over the relationship between compelled speech, public accommodation laws and constitutional protections.
Before the high court even agreed to hear the case, 303 Creative v. Elenis attracted a long list of amicus briefs urging the court to take up the appeal. All amicus briefs filed so far ask the court to side with Smith, with many citing concerns over freedom of religion, government overreach and concerns about the First Amendment.
Supporters include religious organizations, libertarian think-tanks, conservative legal funds and more. A coalition of 16 states — Arizona, Nebraska, Alabama, Arkansas, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Oklahoma, South Carolina, Tennessee, Texas, Utah and West Virginia — urged to court to take up the case as well as Colorado Congress members Doug Lamborn, Lauren Boebert and Ken Buck with a group of other U.S. Senators and Representatives in support of Smith.
The case will likely attract other amicus parties after it’s docketed. Any state with similar public accommodation laws could be impacted by the U.S. Supreme Court’s decision.