- The Washington Times - Thursday, July 29, 2021

A Colorado web designer is taking her challenge of the state’s anti-discrimination law to the U.S. Supreme Court, now that a federal appellate court has rejected her lawsuit claiming religious liberty in denying service to same-sex wedding couples.

Lorie Smith, owner of the web design firm 303creative, says the recent ruling by the U.S. Court of Appeals for the 10th Circuit will not stymie her efforts to avoid the hassles endured by a Colorado baker who refused to bake same-sex wedding cakes.

“For me, this means we’re appealing the court’s decision at the highest level,” Ms. Smith said in a telephone interview. “That’s the United States Supreme Court. So I’m encouraged by what might come out of this.”

A three-judge panel of the 10th Circuit on Monday rejected Ms. Smith‘s lawsuit against the state of Colorado’s anti-discrimination law/ But two judges said she was “rightfully wary of offering wedding-related services and may challenge” the law “as chilling [her] speech.”

Still, the majority ruled that exempting 303creative from a requirement to serve all customers regardless of sexual orientation would “necessarily relegate LGBT consumers to an inferior market because [Ms. Smith’s] unique services are, by definition, unavailable elsewhere.”

The court said Colorado “has a compelling interest in protecting both the dignity interests of members of marginalized groups,” such as same-sex couples seeking a marriage website.

A 2020 survey of newlyweds by WeddingWire.com revealed that 79% of couples created a website for family and friends to track the nuptials.

Ms. Smith, 37, first sued the state in 2016. She said the case of Lakewood, Colorado, baker Jack Phillips sparked her action.

Mr. Phillips has been in and out of court following his 2012 refusal to create a wedding cake for a same-sex couple. The baker said his faith defines marriage as being between one man and one woman, and he couldn’t fulfill that request. His refusal put him in the crosshairs of the Colorado Civil Rights Commission.

A 2018 Supreme Court ruling in Mr. Phillips’ favor centered on how the commission had treated the Christian baker, not on free speech and free exercise issues.

Ms. Smith and her attorney said they hope to bring those same questions to the high court.

Two judges — each appointed by President Bill Clinton in 1995 — formed the majority on the three-judge panel in Ms. Smith’s case. Judge Mary Beck Briscoe wrote the majority opinion, in which Judge Michael R. Murphy joined.

In his dissent, Chief Judge Timothy M. Tymkovich, a 2003 George W. Bush appointee, said Ms. Smith’s argument was “even clearer” than that of Mr. Phillips.”

“It is obvious to even the most casual viewer that Ms. Smith is creating a customized art product — which incorporates unique, expressive speech — for her customers,” he wrote.

The ruling drew a sharp rebuke from Jake Warner, an attorney with Alliance Defending Freedom, the Christian law firm defending Ms. Smith.

“What we’re seeing is cases all around the country asking, can the government force creative professionals to express messages that go against their deeply held beliefs? And we believe the answer to that question is no,” Mr. Warner said in an interview.

As with Mr. Phillips, Ms. Smith says she’d create websites for anyone, so long as the content doesn’t violate her principles.

“I think anything that denigrates other people, I have to respectfully decline,” she said. “But does that mean that I don’t work with all people? No, I work with everyone. It’s specific messages, the messaging itself, that I have to be careful about what I promote, and using my artistic talents.”

But Jennifer C. Pizer, senior counsel for the civil rights group Lambda Legal, said in a statement: “This really isn’t about cake or websites or flowers. It’s about protecting LGBTQ people and their families from being subjected to slammed doors, service refusals, and public humiliation in countless places – from fertility clinics to funeral homes, and everywhere in between.”

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