Lorie Smith, the owner and operator of 303 Creative LLC, works as a web designer in Colorado. As a result of her Christian religious beliefs, Ms. Smith wishes to have the right of refusal to accept design work for same-sex clients on wedding site commissions. As well, she wants to post a disclaimer on her website stating her refusal. To her, not doing so would provide a tacit approval of gay marriage which conflicts with the teachings of the Old and New Testament.
However, in the state of Colorado, refusal to offer services to, among other classifications, same-sex individuals goes against the Colorado Anti-Discrimination Act. The posting of discriminatory statements with the promotion of those beliefs are also illegal under the CADA. Before actually posting any statement or refusing any customers, Ms. Smith challenged this law on the basis of religious free exercise by preemptively filing suit against the state, which the 10th Circuit Court of Appeals rejected in 2021. In the two to one majority decision of the 10th Circuit, "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”, granting the government the right to overrule religious beliefs in regards to discriminatory practices. The majority added that should this law be overturned, the material quality of services for LGBT individuals and their weddings would be inferior due to their status as a minority group. In a statement to the Court, the Attorney General of Colorado noted that “Anti-discrimination laws appropriately apply to prohibit commercial actors from discriminating in commercial transactions, even though those commercial actors remain free to express their view on such laws in public discourse” which delineates the line between business speech and personal speech.
Following the ruling of the 10th Circuit, Ms. Smith's case has now been considered for hearing by the Supreme Court and just recently was chosen to be heard with scheduled arguments in the fall during the next session. They will only be considering the case on a First Amendment basis, with the precise question being considered as "Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment". Ms Smith will be represented by the Alliance Defending Freedom, a conservative Christian nonprofit advocacy group, due to the organization's belief that the law "censors and coerces the speech of creative professionals whose religious beliefs do not conform to state orthodoxy". Their claim comes from the notion that as a religious minority—in regards to religious beliefs on homosexuality—the rights to free exercise of religion and freedom of speech are being intentionally trampled upon in favor of the state's protection of LGBT individuals. Some, including the Southern Poverty Law Center, classify the ADF as an anti-LGBT organization.
This case may seem familiar, given the subject matter and location. The precedent being looked upon in this is the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, a case in which the owner also refused wedding services in the form of making wedding cakes for same-sex weddings on the basis of his religious beliefs and that baking cakes was an expression of the right to free speech. In Masterpiece, the holding rejected the commission as not being neutral towards religion and finding it in violation of the First Amendment, though the Court did not delineate further on the relationship and hierarchy of the Free Exercise clause, free speech. or anti-discriminatory laws due to the difference between the numerous concurring and dissenting opinions on the overall result. To add, Masterpiece Cakeshop was also represented by the ADF, who favor the argument of the service acts as a supporting endorsement of same-sex marriage which aligns with the notion in both Masterpiece and 303 Creative that the creative product of the artist is free speech.
The end result of this case, given the holding in Masterpiece and other similar anti-discrimination cases, will likely end as either inconclusive or in favor of Smith's argument. As the court has previously accepted the argument that a creative service or product acts as free speech and that Smith owns and operates her own company, they will see her as fitting within the expression of a private citizen definition and that, despite the fact that there is the fear that should this law be overturned the quality and availability of service in a fair manner for LGBT individuals will drop significantly and impact their lives, there are other opportunities and merchants to offer similar services. Likewise, the Attorney General for Colorado noted that there has been no evidence that an LGBT couple has approached Smith in search of a website for same-sex marriage, which will only further distance the slippery-slope argument in this case. One could also note that many see marriage websites as a non-essential service on offer and because of this, the quality of life difference could be considered as negligible.
https://coloradonewsline.com/briefs/u-s-supreme-court-will-hear-colorado-case-over-whether-web-designer-can-deny-service-to-gay-couples/
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110553596.pdf
https://law.justia.com/codes/colorado/2016/title-24/principal-departments/article-34/part-6/section-24-34-601
https://www.pbs.org/newshour/politics/supreme-court-to-hear-case-of-designer-refusing-to-offer-wedding-websites-for-gay-couples
https://www.nytimes.com/2022/02/22/us/colorado-supreme-court-same-sex-marriage.html
This case does seem to be a pretty large slippery slope. Although there is a compelling state interest to protect minority groups, I do see how this could violate one's First Amendment rights in the way that this is a private business. Because this case is solely being looked at from the view of the First Amendment, I do think that the court should vote in favor of Ms. Smith just purely off of how the court defined free speech in this case. With this being said, looking at it from the other view, I also understand and believe this case involves a strong enough compelling state interest, and therefore, it may go the other way.
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ReplyDeleteI am surprised this made it to the Supreme Court considering that infamous cake case that only occurred a couple years ago. I believe that Smith will win this case, as technically same-sex clients could probably pretty easily go to another Webdesigner. While it is offensive to them to be rejected, why would they want a designer that does not support their rights anyway? This case begs the question, where is the line? Also, as we have learned in class, technically LGBTQIA+ rights are not yet a part of the Constitution; the First Amendment is. This could be comparable to asking a Sikh to take off their headpiece in Smith's eyes.
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This is a difficult case to decide, but I think that it would be an infringement on Smith's right to free speech if she were forced by law to create a website for same-sex marriages. I think the key here is that the website could be considered a form of art, and therefore an expression of the creator. The story would be different if someone tried to deny service to a same-sex couple for something like a vehicle service. If Smith were forced to create the website, in her eyes she could be facing eternal damnation, which seems like a bad thing for the government to force someone to do. It is entirely possible that Smith would just stop making websites than adhere to the government, which would undermine its authority.
ReplyDeleteI find myself really conflicted in this type of scenario because I can see both sides of the argument. I think there is a huge issue with the slippery slope because at what point should the government intervene when it comes to discrimination. I am of the opinion that this is an extreme form of discrimination and that asking Ms. Smith to not discriminate is not a substantial burden. I also think that the state has a compelling state freedom to protect the rights of marginalized groups. On the other hand, I can also see how this is private business and her 1st amendment right could be violated if she is told she must sell to same-sex couples. I think I agree more with the former, for the sole reason that discrimination should not be allowed in any regard.
ReplyDeleteI agree with the other comments in that this is a difficult case to decide because it speaks on anti-discrimination laws along with the right of free exercise. I feel like Ms. Smith will win this case though because like the adoption agency case we spoke about in class that couple doesn't have the right to go to her for her services therefore they can go to another person. Because this also goes against her religious convictions and she feels as though there is a substantial burden for her to deny this service due to her religion I feel like the court will rule in her favor. Along with the fact that she is a private business owner and if they make her do this she can claim that they are now violating her First Amendment right to free exercise of religion. This is a difficult case to decide because of these factors.
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