The Supreme Court agreed on Tuesday to take up a case in which a Christian website designer alleges that Colorado law would force her to design wedding websites for same-sex couples in spite of her convictions.
The case involves artist Lorie Smith, owner of graphic design firm 303 Creative LLC, and Director of the Colorado Civil Rights Division Aubrey Elenis (and several other division officials). Smith wants to expand her business to include designing wedding websites, “promoting her understanding of marriage.” She also wants to post a statement on her website “explaining that she can only speak messages consistent with her faith,” according to the cert petition. Attorneys argue that the Colorado Anti-Discrimination Act (CADA) would require her to “create custom websites celebrating same-sex marriage” and would prohibit her statement of faith.
The U.S. Court of Appeals for the Tenth Circuit sided with the Colorado officials, the judges concluding 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,” Smith’s attorneys argue.
“The court also upheld CADA under Employment Division v. Smith, 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 cert petition continues.
The Tenth Circuit ruled that Smith’s “creation of wedding websites is pure speech,” and that the state law would force her to create speech she does not personally believe in. Ultimately, the federal appeals court said Colorado’s law is narrowly tailored to the state’s interest because it allows LGBTQ customers to access Smith’s services. While other businesses would likely not have an issue designing a website for same-sex couples, the court ruled that those customers “will never be able to obtain wedding related services of the same quality and nature” as the services Smith provides.
Attorneys for Smith argued that the Tenth Circuit’s “bizarre reasoning turns free speech protections on their head.”
“The more “unique” speech is, the more the government can compel it,” they alleged. The cert petition also cited part of the dissenting opinion from Tenth Circuit Judge Timothy Tymkovich.
“[T]he scope of the majority’s opinion is staggering,” allowing the government to “regulate the messages communicated by all artists,” he wrote.
Attorneys for Elenis filed a reply brief in late December, arguing that Smith has no legal standing because she has not actually started designing wedding websites, making her case a “pre-enforcement challenge on hypothetical facts” which “will not allow this Court to reliably analyze that exception,” the reply brief states.
The state also argues that Smith’s LLC has “fail[ed] to show that it faces a credible threat of enforcement under the Act,” and that CADA is “neutral” because it was “not enacted to target any religious beliefs or practices…”
Even though both Smith and Elenis had several legal questions for the justices, the Supreme Court agreed to answer one question in the case: “whether applying a public accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”
The Justices agreed to take up Smith’s case just four years after they ruled in favor of Colorado baker Jack Phillips. In that case, Phillips refused to make a cake for a same-sex couple because doing so violated his Christian beliefs. However, the justices did not rule on the central question in his case: whether being made to bake a cake for a same-sex couple violated his First Amendment right to freedom of speech.
The Justices did not set a date for oral arguments, meaning the case will most likely be heard during the next session.
The case is 303 Creative LLC v. Elenis, No. 21-476 in the Supreme Court of the United States.
Katherine Hamilton is a political reporter for Breitbart News. You can follow her on Twitter.
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