Colorado Creative Supreme Court Case 303 Pits LGBTQ Rights Against Free Speech Claim

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LITTLETON, Colo. — When the Supreme Court narrowly ruled in 2018 in favor of a Colorado baker who refused to create a wedding cake for a gay couple, the justices avoided declaring a clear winner in the cultural conflict between LGBTQ rights advocates and those who say their religious beliefs prohibit encouraging same-sex marriage.

It turns out that the next such case, to be taken up by the Supreme Court on Monday, was just a short drive away.

About five miles from Jack Phillips’ Masterpiece Cakeshop, the focus of the battle four years ago, is a cheery office in a nondescript building. Graphic designer Lorie Smith says the same Colorado public accommodations law that Phillips challenged, which prohibits discrimination based on sexual orientation, also violates his deeply held religious views and his right to free speech.

Smith wants to expand her business into creating wedding websites, but only to tell stories of brides and grooms “through God’s lens.” And she wants to be able to tell same-sex couples on her 303 Creative LLC website that he won’t create such platforms for them.

“Colorado is censoring and forcing my speech and it really forces me to pour my creativity into creating messages that violate my convictions,” Smith said in a recent interview, with one of his attorneys sitting nearby. “There are some messages I can’t create.”

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Two courts have ruled against Smith, saying Colorado has a compelling interest in requiring businesses that are open to the public to serve all citizens of the state.

No matter how authentic Smith’s broad free speech argument may be, State Attorney General Philip J. Weiser (D) told the Supreme Court in his brief, it would encompass not only a company’s religious beliefs “but also objections motivated by ignorance, caprice, bigotry, whim and more, including outright expressions of racial, sexist or anti-religious hatred.”

When the court took up Smith’s case, it refused to hear Smith’s claim that Colorado law violates his religious freedom. It also did not agree to hear their request to overturn Supreme Court precedent on neutral laws that could have implications for religious believers.

Instead, the justices propose to answer this question: “Whether the application of a public accommodation law to compel an artist to speak or remain silent violates the Free Speech Clause of the First Amendment.”

And some court observers say the decision could have an even bigger impact.

Smith is represented by the same conservative legal organization that defended Phillips. His case has been preparing for years. But it comes at a time of contention over the LGBTQ rights movement.

Nationally, Congress is poised to grant historic federal recognition to same-sex marriage, a step unthinkable even a decade ago. but the effort is significantly motivated by fears that the Supreme Court may one day renege on the constitutional right of same-sex couples to marry that it found in 2015.

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In Colorado, residents last year watched their historic governor, Jared Polis, marry first gentleman Marlon Reis in an intimate ceremony that is still grand enough to warrant high-society coverage. But last month, the LGBTQ community and the nation were shocked when a gunman stormed a gay nightclub in Colorado Springs, shooting dozens of patrons and killing five.

Some wonder how the state has come to play such a prominent role in the Supreme Court’s consideration of whether same-sex marriage will be treated differently from traditional marriage.

The Colorado legislature never approved same-sex marriage; instead, it was decreed by federal courts. But long before, in 2008, the state had banned discrimination against gay people in housing, public accommodations and employment, and established civil rights protections. based on gender identity.

“It’s really crazy to think about how far we’ve come,” said Garrett Royer, director of One Colorado, an LGBTQ advocacy group. But he added that he believes the movement’s success has targeted the state.

“I think the conservative movement is looking at, how do we get rid of this very progressive nondiscrimination law in Colorado?” Royer said. “And that has implications at the national level for getting these protections back.”

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In an interview, Smith declined to answer whether he thinks same-sex marriage should be legal, saying his case is personal, not political. She works for LGBTQ clients on other issues, she said. a win for her he said, it would be just as valuable to a gay artist who doesn’t want to create for a cause he doesn’t believe in.

The case comes before a court much changed since the 2018 decision, which did not alter Colorado law but said officials unfairly applied it against Phillips due to religious bias on the part of some.

Justice Anthony M. Kennedy, who wrote that needle-thread opinion as well as the court’s landmark decisions on gay rights, including marriage, has retired. Also leaving was a dissent in the Phillips case, Judge Ruth Bader Ginsburg. She was the first judge to officiate at a same-sex wedding and was an advocate who warned that treating same-sex couples differently from opposite-sex couples would only provide new unions with a “skim” version of marriage.

Kennedy and Ginsburg were replaced by more conservative justices on a court that has been protective of free speech rights and increasingly sympathetic to challenges brought by religious interests. It is highly unlikely that the court took Smith’s case simply to affirm the rulings of lower courts.

Kristen Wagoner, president, CEO and general counsel of Alliance Defending Freedom, the conservative organization that represents Smith, said the court doesn’t need to break new ground to find in Smith’s favor.

“Public accommodation laws and the First Amendment have coexisted peacefully for years and years, for decades,” Wagoner said in an interview. “This case is not about whether they will continue to do it; it is just a matter of whether the court will continue to follow the precedent that is already established.”

Wagoner’s brief relies on pivotal First Amendment cases that found the government cannot, in his words, “force speakers to endorse certain messages and avoid others.”

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In 1995, the court ruled unanimously, in Hurley vs. Boston Irish-American Gay, Lesbian and Bisexual Group — that a public accommodations law could not be used to force organizers of the Boston St. Patrick’s Day parade to admit a gay rights group. And Wagoner’s writing begins with the famous 1943 court decision that Jehovah’s Witness students in West Virginia could not be compelled to salute the flag or recite the Pledge of Allegiance.

The Colorado law “inverts those principles, so that artists must now express government-sanctioned messages, stop expressing their own preferred message, or leave the market in which they hope to participate,” Wagoner writes.

Colorado counters that even if the websites Smith wants to produce are expressive (he hasn’t actually accepted a commission for one to avoid breaking the law) he is confusing free speech with selling a product. State residents shouldn’t have to worry that a company will turn them down “because of who they are.”

Enforcement of the law “does not depend on what a company chooses to sell,” Weiser writes in the state’s brief. “It simply requires that once a company offers a product or service to the public, the company sells it to everyone.”

Smith, the state says, is free to offer “only websites that include Biblical quotes that describe marriage as the union of one man and one woman.” But then the company “must sell everything it offers to customers regardless of their race, religion, sexual orientation, or other protected characteristic. . . Both believers and atheists can choose to buy their websites with biblical quotes.

The state says Smith proposes to post on his company’s website the message that “I will not be able to create websites for same-sex marriages or any marriage other than between a man and a woman.”

Under Colorado’s protection for gay citizens, Weiser wrote, “this amounts to an advertisement of unlawful discrimination similar to a ‘white applicants only’ sign.”

It’s also not enough for other companies to provide similar marriage services to same-sex couples, the state says. The court made that clear decades ago, ruling against a motel that wanted to serve only white guests and a restaurant owner who said an integrated dining room would violate his religious beliefs.

smith’s lawyer he replies that “throwing up racism is simply an attempt to shut down the debate, and frankly, it’s offensive to smear people like that.” She said that Smith would create a website for an interracial couple or an interfaith couple, as long as the couple was heterosexual.

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What matters, Waggoner said, is not whether Smith is creating speech for profit—”our First Amendment rights don’t depend on whether he’s trying to make a living”—but that it’s a custom project that reflects the beliefs of Smith.

Even a finished product could be protected, Wagoner said: Think of the rock star who doesn’t want his recorded songs played at the rallies of a politician he hates.

Smith is supported by a long list of religious organizations and academics who say creating a personalized speech is different from previous cases of public accommodation.

Law professors Dale Carpenter, a supporter of gay rights, and Eugene Volokh, a First Amendment specialist, said in a writing by a friend of the court that a line can be drawn. On the protected side of those who create expressions related to weddings: “website creators, writers, photographers, painters, singers and similar speakers”. On the other hand, those who perform different activities “such as baking, clothing design, architecture, and other media.”

The state of Colorado is supported by the Department of Justice which, under the Biden administration, has reversed its position since the Phillips case. Also supporting Colorado are the American Civil Liberties Union, an advocate of free speech, and others.

The Colorado law does not deserve the most rigorous scrutiny of the court, says the ACLU, because it is intended to make services open to all, not to censor Smith’s views on marriage.

The critical inquiry, says the organization, “is not whether a business act is expressive, as 303 Creative insists, but if the interest of the government by regulating it, it aims at expression”.

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