Supreme Court sides with web designer who challenged the Colorado Anti-Discrimination Act by refusing to create websites for same-sex couples

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The U.S. Supreme Court ruled in favor of a Colorado web designer who challenged the state’s anti-discrimination law, contending that forcing her to create websites that celebrated same-sex marriage violated her Free Speech rights. 

Key Players

Lorie Smith, a web designer and owner of 303 Creative is an evangelical nondenominational Christian. Smith asserts that her talents are God-given and her faith prevents her from creating content “inconsistent” with her religious beliefs. Smith’s hometown of Littleton, located south of Denver, leans somewhat liberal. 

Alliance Defending Freedom (ADF), an Arizona-based legal advocacy group, protects “religious freedom, free speech, the sanctity of life, parental rights, and God’s design for marriage and family.” Per the Southern Poverty Law Center, the ADF has supported recriminalization of sexual acts between gay people, defended state-sanctioned sterilization of transgender people abroad, asserted that society would be destroyed by a “homosexual agenda,” and helped produced legislation that permits the denial of goods and services to gay people on the basis of religion. ADF provided Smith with legal support. 

The Colorado Civil Rights Division (CCRD) enforces the Colorado Anti-Discrimination Act (CADA), which prohibits discrimination in employment, housing, and places of public accommodation. The Colorado Civil Rights Commission (CCRC), a bipartisan board, reviews cases investigated by the CCRD and conducts enforcement hearings on policies, regulations, and laws that address discrimination.   

Further Details

On Sept. 20, 2016, Smith filed a federal lawsuit against state Attorney General Cynthia Coffman and the members of the CCRC, challenging the constitutionality of two clauses of CADA: the accommodation clause and the communication clause. 

The accommodation clause states that it is unlawful to deny an individual or group the “full and equal enjoyment of” goods and services based on sexual orientation, disability, race, creed, sex, marital status, national origin, or ancestry. The communication clause states it is discriminatory to publish any printed communication that indicates a refusal of services, or denial of an individual’s presence at a place of public accommodation, based on the same factors.

Under CADA, if 303 Creative designed wedding websites for straight couples, it must provide the same service for same-sex couples. It was prevented from publishing on its website a desired message “that marriage is a God-ordained institution between one man and one woman.”

Smith maintained that she had provided services to LGBTQ clients and that her lawsuit was not meant to attack them or same-sex marriage, but to fight against being coerced into violating her faith. “Colorado is censoring and compelling my speech,” Smith said, and “forcing me to communicate, celebrate and create messages that go against my deeply held beliefs,” The Associated Press reported. 

On Sept. 26, 2019, U.S. District Judge Marcia Krieger, nominated by former President George W. Bush, ruled against Smith, writing that “to decline any request that a same-sex couple might make to her to create a wedding website” violated the accommodation clause, and that her proposed statement affirming her beliefs violated the communication clause.  

In the lead-up to Krieger’s ruling, Smith’s case was stalled in both the district and appellate court awaiting the outcome of Masterpiece Cakeshop v. CCRC, a similar case in which a baker alleged that requiring him to bake a custom wedding cake for same-sex couples violated his First Amendment rights. In 2018, the Supreme Court ruled that the CCRC acted with anti-religious hostility against the baker in violation of the free exercise clause, but it did not establish whether a business could refuse services to LGBTQ clients on a religious basis.

On July 26, 2021, after Smith appealed, a three-judge panel of the 10th U.S. Circuit Court of Appeals ruled 2-1 in favor of the state. 

Judges Mary Beck Briscoe and Michael Murphy, both nominated by former President Bill Clinton, agreed that the appellate court needed to “consider the grave harms caused when public accommodations discriminate on the basis of race, religion, sex, or sexual orientation. Combatting such discrimination is, like individual autonomy, ‘essential’ to our democratic ideals.”

Judge Timothy Tymkovich, also nominated by former President George W. Bush, dissented, writing that the decision was “unprecedented,” “staggering,” and that Smith was constitutionally protected “from the government telling her what to say.” 

Smith filed a petition for a writ of certiorari with the Supreme Court, and on Feb. 22, 2022, it agreed to hear her appeal.

Outcome

Experts dwell on potential ruling

The Supreme Court said it would assess whether CADA violated an artist’s First Amendment rights. With the court’s conservative majority, experts believed that the justices would likely rule in favor of Smith.  

Prior to the ruling, Scott Skinner-Thompson, a University of Colorado law professor, told The Colorado Sun that the court “could undermine 50 years plus, almost 60 years, of civil rights legislation in this country,” adding that the case was not only about same-sex marriage but “all kinds of discrimination laws.”

David Cole, the national legal director of the American Civil Liberties Union, argued that CADA did not violate businesses’ Free Speech rights, but rather required them to provide equal services to all customers. Cole said Smith’s First Amendment rights allowed her to disagree publicly with same-sex marriage but did not protect any right to refuse service based on a customer’s sexual orientation, The AP reported.

“If 303 Creative prevails here, then any business that can be characterized as expressive, and that’s a lot of businesses, can start putting up signs saying no Jews served, no Christians served, no Blacks served,” Cole said, comparing this practice to Jim Crow laws that enforced segregation and denied goods and services to Black people and others throughout the 19th and much of the 20th centuries.

“If the court rules for Lorie Smith, it would have to reverse a long line of precedents and break from an unbroken set of cases,” Cole said.

“This case is about the right of every American to say what they believe without the fear of government punishment,” Jack Warner, senior counsel for ADF’s appellate team, said. “We’re hopeful that the U.S. Supreme Court will rule for Lorie because a win for her would protect the freedom of all Americans, including those who disagree with Lorie on some of life’s biggest issues.”

Supreme Court rules in favor of Smith

On June 30, the court ruled, in a 6-3 opinion delivered by Justice Neil Gorsuch, that Smith had the right to refuse service to same-sex couples seeking wedding websites.

“The First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply ‘misguided,’” Gorsuch wrote, arguing that the state could not “force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.”

The decision acknowledged the need to protect public accommodation laws, stating, however, that “no public accommodations law is immune from the demands of the Constitution.”

The majority opinion contended it was difficult to determine “what qualifies as expressive activity protected by the First Amendment.” What made Smith’s case unique, Gorsuch wrote, was that she did not sell ordinary commercial goods, but rather “‘customized and tailored’ speech,” which therefore entailed First Amendment protections. 

Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, dissented, arguing that the Constitution “contains no right to refuse service to a disfavored group.”

Businesses that profit from a public market, Sotomayor wrote, cannot engage in discrimination, such as refusing wedding websites for gay couples. Such actions, according to her, would contradict both public accommodation laws and federal laws, including the Civil Rights Act and the Americans with Disabilities Act of 1990. “The opinion of the court is, quite literally, a notice that reads: ‘Some services may be denied to same-sex couples,” Sotomayor said, following the decision.

But Kristen Waggoner, who represented Smith, called the decision “a win for all Americans.” 

“The government should no more censor Lorie for speaking consistent with her beliefs about marriage than it should punish an LGBT graphic designer for declining to criticize same-sex marriage. If we desire freedom for ourselves, we must defend it for others,” Waggoner stated. 

Colorado Attorney General Phil Weiser announced that Colorado’s officials would continue to “take action to hold accountable those who engage in unlawful discrimination.”