Colorado’s anti-discrimination law is constitutional, and its goal of eliminating prejudicial treatment of marginalized groups outweighs a business’s right to communicate their anti-LGBTQ beliefs, the federal appeals court based in Denver ruled on Monday.
By a 2-1 decision, a panel of the U.S. Court of Appeals for the 10th Circuit rejected a First Amendment challenge to the Colorado Anti-Discrimination Act from Lorie Smith and her company, 303 Creative LLC. Smith, a website designer, sought to warn potential clients that she would not create wedding websites featuring same-sex couples because of her Christian beliefs.
But Smith and 303 Creative “cannot create websites celebrating opposite-sex marriages, unless they also agree to serve customers who request websites celebrating same-sex marriages,” Senior Judge Mary Beck Briscoe wrote for the appellate panel’s majority. “As Colorado makes clear, CADA is intended to remedy a long and invidious history of discrimination based on sexual orientation.”
The case attracted attention nationally, with numerous outside groups filing briefs in support of Smith’s challenge or in opposition to it. Those included Americans United for the Separation of Church and State, the Center for Constitutional Rights, Republican and Democratic state attorneys general, and the American Civil Liberties Union.
An attorney for the Alliance Defending Freedom, which represented Smith, said it will appeal the panel’s decision. The Southern Poverty Law Center has designated the ADF a hate group for its work against the rights of LGBTQ people.
The government argued that Smith lacked standing to sue because she had not yet denied service to anyone on account of their sexual orientation. The panel disagreed and found it had jurisdiction to hear her appeal, given that the state would likely enforce CADA if Smith did follow through on her intentions.
Smith’s case concerned two components of CADA: first, the “Accommodation Clause,” which makes it illegal to refuse to provide goods and services in a place of public accommodation based on sexual orientation, race, national origin and other attributes. Second, the “Communication Clause,” which prohibits communication that indicates someone is “unwelcome, objectionable, unacceptable, or undesirable” because of their sexual orientation or other protected attribute.
Smith claimed she wished to put a statement on her company website that explained how each wedding “is a story in itself” and Smith has “the privilege of telling the story of your love and commitment by designing a stunning website.” However, after describing how god called her to stand up for her faith, Smith’s statement would indicate she “will not be able to create websites for same-sex marriages or any other marriage that is not between one ma and one woman.”
The panel’s majority of Briscoe and Senior Judge Michael R. Murphy, both of whom were Clinton administration nominees, acknowledged that CADA’s Accommodation Clause forces Smith to create websites she would otherwise not, thus regulating the content of her speech.
Although they did not call into question Smith’s religious beliefs, “we fail to see how Appellants’ sincerity or good faith should excuse them from CADA,” wrote Briscoe.
In a forceful and expansive dissent, Chief Judge Timothy M. Tymkovich, a nominee of President George W. Bush, quoted novelist George Orwell and warned of a “slippery slope” toward authoritarianism that would result from stifling the speech of minorities.
“[T]he majority takes the remarkable — and novel — stance that the government may force Ms. Smith to produce messages that violate her conscience. In doing so, the majority concludes not only that Colorado has a compelling interest in forcing Ms. Smith to speak a government-approved message against her religious beliefs, but also that its public-accommodation law is the least restrictive means of accomplishing this goal,” Tymkovich wrote.
He added: “No case has ever gone so far.”
Throughout the panel’s decision were numerous references to another noteworthy anti-discrimination case out of Colorado: Masterpiece Cakeshop v. Colorado Civil Rights Division. The U.S. Supreme Court decided in 2018 that the state was hostile toward Lakewood baker Jack Phillips’s religious beliefs, after he refused to create a wedding cake for a same-sex couple. The civil rights commission thus violated Phillips’s First Amendment rights.
Tymkovich, in his dissent, suggested that Colorado allow religious-based exemptions from CADA, perhaps applying specifically to faith-based artists whose work pertains to weddings.
“When all is said and done, allowing business owners like Ms. Smith to operate in accordance with the tenets of their faiths does not damage society but enriches it,” he wrote.
That sentiment ran counter to the state’s argument. Solicitor General Eric R. Olson told the panel during oral arguments that “if you open a business, you have to serve all based on protected class status, and you can’t turn people away solely because of who they are.”
Lambda Legal, an LGBTQ civil rights advocacy organization, celebrated the panel’s ruling for interpreting the First Amendment rights of speech and religion in the context of Colorado’s responsibility for combating discrimination.
“This really isn’t about cake or websites or flowers,” said senior counsel Jennifer C. Pizer in a statement. “It’s about protecting LGBTQ people and their families from being subjected to slammed doors, service refusals, and public humiliation in countless places — from fertility clinics to funeral homes, and everywhere in between.”
Smith’s lawsuit has been working its way through the federal courts for nearly five years. Her portfolio to date includes graphic designs for businesses, religious organizations and Republican political candidates. Smith attempted to argue that she would not, in fact, refuse to serve LGBTQ clients, but rather that she would not create websites promoting a pro-same-sex couple message.
“Ms. Smith is not choosing her customers. She’s choosing her content,” attorney Kristen Waggoner said of her client.
U.S. District Court Senior Judge Marcia S. Krieger initially found Smith had no standing to challenge the Accommodation Clause, and that the Communication Clause sought to prevent companies from advertising their intent to illegally discriminate. She likened Smith’s proposed statement to a “Whites Only” sign outside of a business.
Since that time, the conservative-majority Supreme Court has weighed in on the side of religious freedom — particularly during the COVID-19 pandemic, rejecting states’ health protocols that were stricter for religious services than for other types of businesses. Last month, the Court also decided the city of Philadelphia violated the First Amendment when it barred Catholic Social Services from placing children in foster homes because of the group’s policy against same-sex couples.
Along those lines, Tymkovich argued that it was not a compelling interest of the state to ensure access to a particular company’s artistic product. He raised the specter of the government forcing a Muslim movie director to make a film containing a Zionist message. But the 10th Circuit’s majority in Smith’s case reasoned that preserving freedom of speech and ensuring the openness of public accommodations are both important principles — with CADA’s restrictions on the former being narrowly focused on achieving the latter.
“In short, Appellants’ Free Speech and Free Exercise rights are, of course, compelling. But so too is Colorado’s interest in protecting its citizens from the harms of discrimination,” Briscoe wrote. “And Colorado cannot defend that interest while also excepting Appellants from CADA.”
The case is 303 Creative LLC et al. v. Elenis et al.