Colo. suit: Law still threatens wedding professionals who oppose gay marriage 

Denver, Colo., Jan 29, 2020 / 10:57 am

A Colorado web designer is challenging a state law she says could be enforced against her if she doesn't create material that promotes same-sex weddings.

"The government shouldn't threaten a web designer with fines to force her to publish websites that violate her beliefs," Alliance Defending Freedom senior counsel Jonathan Scruggs said Jan. 22.

"As Colorado itself admits, Lorie works with all people; she just doesn't promote all messages. The state must protect, not threaten, the freedom of online speakers and other artists to choose which messages to express through their own projects."

The religious freedom legal group in September 2016 filed the lawsuit on behalf of Lorie Smith, a web designer who operates the design studio 303 Creative. In September 2019 a federal district court order finalized a ruling dismissing the lawsuit, but the attorneys are appealing.

The case is not a response to government action. Rather, it is a pre-enforcement challenge intended to prevent the use of the law that Smith's attorneys say affects creative professionals who have religious or moral concerns about creating content that violates their beliefs.

Colorado's Anti-Discrimination Act bars creative professionals from expressing views about marriage that suggest someone is "unwelcome, objectionable, unacceptable, or undesirable." They may not express views that suggest the designer won't create particular works because of those beliefs, Alliance Defending Freedom said.

Smith's attorneys say the law violates the U.S. Constitution, including the free speech and free press provisions of the First Amendment. They say courts have questioned the constitutionality of similar laws in Minnesota and Arizona.

On Jan. 22 they filed their brief to appeal to the 10th Circuit Court of Appeals. Failure to secure a court ruling against the law, they say, would force Smith to live under threat of prosecution if she declines to design and publish websites that promote messages or causes that conflict with her beliefs.

"The district court shouldn't have 'assumed' Lorie's decision to act consistently with her conscience was illegal without any analysis of that question, especially when other courts have upheld free speech rights in similar contexts," said Scruggs.

The legal brief says Smith "gladly serves everyone no matter who they are" but "she cannot create all content requested-including content that demeans, incites violence, or promotes any conception of marriage other than between one man and one woman."

The brief says that Colorado officials concede that Smith serves people regardless of status, does not discriminate against LGBT persons, and only refers customers to other businesses on the basis of a requested message.

The brief charges that the state anti-discrimination law would "force Lorie to create websites celebrating same-sex weddings" and to "ban Lorie from posting a statement explaining the content she can create."

"This attack on Lorie's faith and editorial freedom targets 'the fundamental First Amendment rule'-that 'a speaker has the autonomy to choose the content of (her) own message'," the brief continued.

At issue is the same law that brought Lakewood, Colo. baker Jack Philips and his business Masterpiece Cakeshop to the U.S. Supreme Court. In 2012, Philips declined to make a cake for a same-sex wedding, on the grounds that doing so would violate his religious beliefs. His prospective customers filed a complaint, and Philips went before the Colorado Civil Rights Commission.

The civil rights commission ordered Phillips and his staff to undergo anti-discrimination training and to submit quarterly reports on how he is changing company policies. He had to cease making wedding cakes to continue operating his business according to his conscience while not running afoul of the law.

In June 2018, the U.S. Supreme Court ruled that the Colorado commission had violated Phillips' rights.

The 7-2 opinion said the commission "showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection."

The high court also cited inconsistent treatment of complaints by Colorado authorities. When a man complained that other bakeries refused to create cakes with an anti-gay marriage message, religious imagery and loosely paraphrased Bible passages, state authorities rejected the complaints.

Phillips was then caught up in a controversy when a prospective customer asked him to make a cake to celebrate a gender transition, and he declined citing his religious beliefs. The customer complained to state officials that this constituted discrimination on the basis of gender identity, but this was rejected.