Lorie Smith is an aspiring web designer in Colorado. Prior to starting her business, she filed against the state’s anti-discrimination laws that forbid discrimination against same-sex couples. However, given her religious beliefs, Smith feels that by providing her services to same-sex couples, her actions would conflict with God’s will. Smith has proposed posting a message on her website stating that the company will not create wedding websites for LGBTQ+ customers, due to religious beliefs.
The lawsuit was filed against the state because Colorado law prevents discrimination from occurring at businesses that are open to the public. The Colorado Anti-Discrimination Act “makes it illegal for someone to withhold services based on another person’s race, sexual orientation, disability, or national origin, among other characteristics.” Additionally, statements that promote discrimination are forbidden. Before actively breaking the law, Smith decided to file a case, on the grounds that the law violates her First Amendment rights of free speech and free exercise of religion.
This case, 303 Creative LLC v. Elenis, has previously made it to the 10th Circuit Court of Appeals in Denver, and will be heard by the Supreme Court during its next term, which is set to start in October. At the Appeals Court level, a 2-1 decision sided with the state, as “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.” The Colorado Anti-Discrimination Act was upheld as constitutional because of the understanding that without the protection of such a law, LGBTQ+ individuals would receive services of inferior quality.
Smith is being represented by the Alliance Defending Freedom, whose claim rests on the argument that the anti-discrimination law in Colorado violates her First Amendment rights, specifically free speech and free exercise of religion. The claim is that Colorado is using their law to silence beliefs with which they do not agree. By mandating that Smith works with same-sex clients, the state forces her to violate her religious beliefs.
On behalf of the state, Colorado’s attorney general does not feel that there is a concrete issue for which the Supreme Court can decide. Smith has not yet entered business nor has any same-sex couple asked her to create a wedding website, and as a result, Colorado has not yet moved to enforce the law. However, the state feels their law is constitutional given the compelling state interest to protect the rights of marginalized groups in the public economic market.
The main precedent that individuals are looking to in this case is one that the Supreme Court decided in 2018. This involves a baker, also from Colorado, who refused to create cakes for same-sex weddings because it violated his religious beliefs. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, it was decided 7-2 on behalf of the baker. However, many justices on the court ruled in this case on different grounds, through several concurring opinions. Ultimately it was decided that while the LGBTQ+ community is protected from discrimination, religious beliefs are also protected constitutionally. One key difference in the case is that at the time the refusal to bake a cake occurred, in 2012, some key cases regarding gay marriage had not yet been decided. As a result, the baker was at the time acting in a way he saw as constitutional. However, Smith’s refusal occurred after these critical decisions.
Ultimately, the key question in this case surrounds whether enforcing an anti-discrimination law, which results in artists having to speak and act in ways that contradict religious beliefs, violates the free speech and freedom of religion clauses of the First Amendment. When considering the facts of the case, I think Smith is likely to win. This is because she receives no state funding of any sort, and ultimately is entitled to both free speech and freedom of religion. Although anti-discrimination laws are in place, I do not think the compelling state interest is strong enough in this case to justify violating the freedom of religion clause. Same sex couples are not guaranteed to have someone work with them, nor is anyone. While violence and hateful acts should not occur, refusing to make a website for a couple because of religious beliefs does not necessarily hurt someone directly. They may be inconvenienced because of the refusal, but they do not face a significant burden since there are likely others willing to make a website for them. Although it might not be of the same caliber, they are not guaranteed the right to work specifically with Smith. Furthermore, Smith seeks to act through a post on her website stating that creating websites for same-sex couples violates her religious beliefs, which is arguably a non-violent way to make this message known. Finally, she is not refusing to work with LGBTQ+ individuals all together, but instead not partaking in wedding planning for them given her religious beliefs.
The counter argument, siding with the state, would be on the basis that the law is constitutional, and precedent has urged the importance of preserving the rights of same-sex couples. This is seen in Obergefell v. Hodges and United States v. Windsor, both concerning the fundamental right to marry, inclusive of same-sex couples. Similarly, the desire to protect marginalized groups is important, and serves as a compelling state interest to violate the freedom of religion clause in the First Amendment.
Considering all the facts of the case, I do not think the Colorado anti-discrimination laws themselves are unconstitutional. However, as the court has previously established, both anti-discrimination and freedom of religion are protected constitutionally. Therefore, the situation becomes increasingly difficult. In the end, I think that if the claim is on religious grounds, like Smith’s is, the freedom of religion dominates in this case. If however an artist discriminated against a client based on other claims, the law would be upheld and the artist would be punished. Similarly, if the artist created direct harm against someone, the compelling state interest would out way the freedom of religion.
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This case creates a slippery slope between private individual values and secular public interests. While this case is quite challenging to evaluate because of its complexity and because her business is not directly funded or regulated by the government, I believe the state of Colorado has a stronger argument. The Colorado Anti-Discrimination Law was established to ensure equality to all individuals under the law, regardless of their personal identifications. Because this law further pushes state interests of granting all citizens equal opportunities and promoting general welfare, it is not intended to have any overlap with religion. Because the case is questioning the constitutionality of the law in regard to Smith’s Free Speech Clause; it appears as though her denying services would be infringing upon the Free Speech Clause of her potential clients more than her own rights in providing the service. While this case is truly difficult to evaluate, I think it all comes down to Colorado’s Anti-Discrimination Law that must be upheld for all individuals when providing services. An undeniably strong argument was made in the fact that even if Smith had redirected individuals to find other accommodating businesses, they would be treated as a minority. Therefore, such customers are not being provided work of the same quality or nature as Smith. The denial of business over such matters would be discriminating against individuals identifying as LGBTQ, which would be a violation of the state’s Anti-Discrimination Law.
One important fact from this case is that Smith filed against this Colorono Anti-Discrimination Act prior to posting her message on the website. To me, this insinuates that she was trying to seek justice (or exemption) before overtly violating this Act. In addition, she received no state funding which makes her case extremely similar to Masterpiece Cakeshop VS Colorado Civil Rights Commission. While I believe Colorado has a compelling state interest to protect ‘the dignity interests of members of marginalized groups,’ I believe this Act is inadvertently creating a new marginalized group. In other words, prioritizing this Act over Smith’s religious beliefs would alienate her, violate her Constitutional Rights, and leave her in a marginalized position. The defense takes this a step further and argues that this Act is a way for Colorado to silence religious beliefs that they do not agree with. So, while the state has compelling interest to protect marginalized groups, the state also has compelling interest in ensuring freedom of religion. Overall, I agree with Mollys assertion that the compelling state interest is not strong enough to justify violating an individual's freedom of religion.
I agree that the states' argument is weak and the compelling state interest, in this case, is not greater than the individual and constitutionally protected right to freedom of religion and the free exercise thereof. I however disagree with the other commenters in that I do not see a slippery slope here. Smith is not opposed to working with homosexuals, she simply has an issue with one of their practices, and the state cannot force people to condone practices that go against their faith. That would be akin to forcing Muslim restaurants to serve pork to Christian patrons? Which is absurd a proposal to ask of a Muslim.
I believe that the state of Colorado should win this case. First, Smith is filing for a situation that has not yet occurred. She is protesting Colorado's Anti-Discrimination Law for the future concern of having to provide services for a homosexual couple. While I value the protection of freedom of religion, I believe that the precedent by Masterpiece Cakeshop is not applicable. As Molly stated, this case was decided during a time in which gay rights were being debated and eventually expanded. Smith's position is directly what Colorado's Anti-Discrimination law is meant to forbid. It is meant to protect minority individuals in light of First Amendment Rights. Despite this, I believe that the current court may favor Smith in this case considering its high value on personal liberties. Smith's right to Free Exercise and Free Speech may override Colorado's compelling state interest in the eyes of the court. Either way (as Emily pointed out), a marginalized group will result--whether it is LGBTQ individuals or the religious.
I agree with Bella's comment related to the context of the time and situation. It is questionable as to whether the precedent set by Masterpiece Cakeshop is applicable here given the context and how LGBTQ rights have changed since that case. Protecting individuals and minority individuals is something that the Constitution did set up to do and depending how someone interprets the Constitution, such as originalism v. living, could also change how someone interprets this case. I believe that is important to take into account the changing circumstances. I also think neutrality is something to think about here. Colorado's Anti-Discrimination law is looking to protect all individuals, which is very compelling, and something of interest. Although the Constitution originally set out with a large emphasis on freedom of religion and not the protection of LGBTQ individuals, I think we must consider how things have changed since then. At the time of the creation of the Constitution it would have been crazy to think that same-sex marriage would be legal, and now look at how things have changed.
I think the biggest saying factor in this case is precedent, being the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, as Molly mentioned. I agree that there is a difference in the time period of the case, but due to the current make up of the Court I think they will rely on the precedent on Masterpiece and avoid the case of Obergefell v. Hodges. I personally do not think deciding in favor of 303 Creative LLC is the correct outcome because I believe that the Colorado Anti-Discrimination law is completely constitutional and has to be defended in order to protect individuals rights. In favoring with the religious exemption, I believe there is excessive religious privilege granted and government neutrality is compromised. Although, unfortunately, I do believe the Supreme Court will favor the religious argument and agree with Molly's points.
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