Can A Web Designer Be Forced To Make Gay Wedding Pages? SCOTUS To Decide


The Supreme Court has agreed to hear 303 Creative LLC v. Elenis.

Lorie Smith is the owner and operated of 303 Creative, a web design firm out of Colorado.

Smith has religious objections to same-sex marriage and thus does not want to be forced to design websites for those weddings which is a violation of the state’s Anti-Discrimination act.

Smith argued last year in a petition for a writ of certiori:

“Artist Lorie Smith is a website designer who creates original, online content consistent with her faith. She plans to (1) design wedding websites promoting her understanding of marriage, and (2) post a statement explaining that she can only speak messages consistent with her faith. But the Colorado Anti-Discrimination Act (CADA) requires her to create custom websites celebrating same-sex marriage and prohibits her statement—even though Colorado stipulates that she “work[s] with all people regardless of … sexual orientation.”
The Tenth Circuit applied strict scrutiny and astonishingly concluded that the government may, based on content and viewpoint, force Lorie to convey messages that violate her religious beliefs and restrict her from explaining her faith. The court also upheld CADA under Employment Division v. Smith, 494 U.S. 872 (1990), even though CADA creates a “gerrymander” where secular artists can decline to speak but religious artists cannot, meaning the government can compel its approved messages.”

The AP reports:

"In a 2-1 ruling last year, the Denver-based 10th U.S. Circuit Court of Appeals denied Smith’s attempt to overturn a lower court ruling throwing out her legal challenge. The panel said Colorado had a compelling interest in protecting the “dignity interests” of members of marginalized groups through its law, the Colorado Anti-Discrimination Act.
The law, which prohibits discrimination on the basis of sexual orientation, is the same one at issue in the case of Colorado baker Jack Phillips that was decided in 2018 by the U.S. Supreme Court.
The high court said at the time that the Colorado Civil Rights Commission had acted with anti-religious bias against Phillips after he refused to bake a cake for two men who were getting married. But it did not rule on the larger issue of whether a business can invoke religious objections to refuse service to LGBTQ people."

Smith is being represented by Alliance Defending Freedom, which also represented Jack Phillips in the Masterpiece Cakeshop case. 

The Cato Institute, joined by UCLA law professor Eugene Volokh (of The Volokh Conspiracy) and Southern Methodist University Dedman School of Law professor Dale Carpenter, have submitted an amicus curiae brief supporting Smith, urging the Court to find that Colorado's anti-discrimination laws violate her First Amendment rights.

They write:

"as the Tenth Circuit acknowledged, Smith's creation of wedding sites is pure speech. Forcing her to create websites to which she objects is a speech compulsion. The law cannot force her to speak in this way unless the state can satisfy strict judicial scrutiny. Declaring that a unique and customized product is irreplaceable and that therefore a requirement to provide it in the commercial marketplace is narrowly tailored, as the Tenth Circuit did, is to end free-speech protection for providers of expressive products. It erodes the ability of courts to invalidate applications of speech regulations where part of the government's goal is to punish unpopular ideas rather than solely to protect consumers' access to products. That cannot be right as a matter of constitutional law. While providers of commercial services are certainly subject to state anti-discrimination obligations, their freedom of speech must remain protected.”

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