- The Washington Times - Friday, September 24, 2021

A Colorado website designer who fears the state will prosecute her for not creating a same-sex wedding design — or other websites promoting messages her faith does not support — asked the Supreme Court on Friday to hear her case.

Lorie Smith, the owner of 303creative, turned to the high court after her peremptory challenge to Colorado’s anti-discrimination law was rejected by the U.S. Court of Appeals for the 10th Circuit.

“The government shouldn’t weaponize the law to force a web designer to speak messages that violate her beliefs,” said attorney Kristen Waggoner of Alliance Defending Freedom, which is representing Ms. Smith.

In the ruling, the appeals court panel acknowledged Ms. Smith’s worry that the Colorado law would “chill” her free speech rights, but two judges on the panel said granting her the right to turn away same-sex couples seeking a wedding website would “necessarily relegate LGBT consumers to an inferior market because [Ms. Smith’s] unique services are, by definition, unavailable elsewhere.”

The ruling affirmed the Colorado Anti-Discrimination Act or CADA has a “compelling interest” to protect the “dignity interests of marginalized groups,” including same-sex couples.

About 79% of couples created a website for family and friends, according to a 2020 survey for WeddingWire.com.

At a recent press conference, Ms. Smith said she wasn’t discriminating in choosing her clients.

“I have served and continue to serve all people, including those who identify as LGBT, I simply object to being forced to pour my heart, my imagination, and talents into messages that violate my conscience,” she said.

Supporters of the Colorado law say a ruling favoring Ms. Smith would revive a form of discrimination that has been mostly eradicated since the Supreme Court’s 2015 ruling that made same-sex marriage the law of the land.

“What the 10th Circuit’s decision means is that the artistry that is invested in creating something beautiful, can’t be withheld from some people based on their identity, or else we’ve recreated segregation in our society,” Jennifer C. Pizer, senior counsel with Lambda Legal Defense and Education Fund’s Los Angeles office said in an interview.

She asked, “Do we have to learn this lesson again? We’ve already gone through it. It’s painful; it’s awful. People do need to coexist with each other in the public marketplace.”

ADF, a public-interest nonprofit law firm, said in July that they would petition the high court to hear the case. Although Colorado has not taken action against Ms. Smith yet, her attorney fears enforcement is around the corner.

“We already have seen that Lorie has received requests to design websites that violate her convictions and stand with Colorado’s aggressive enforcement history,” Ms. Waggoner said.

She added that the state’s “refusal to say it will not prosecute Lorie similarly, [this] heightens the need for the court to intervene and declare and affirm her First Amendment rights.”

Ms. Smith is also protesting a restriction under the 10th Circuit ruling that says she cannot even explain her faith-based position on her company’s website: “Colorado is censoring my speech. I cannot even post my beliefs about my views on my own website,” she said.

Colorado has a history of challenging those who say their work is an artistic expression protected by the Constitution.

In 2012, baker Jack Phillips of Lakewood, Colorado, repeatedly went to court to challenge the state’s requiring him to create cakes celebrating same-sex weddings or “gender reveals” by transgender individuals. He said such works would violate his religious beliefs.

Mr. Phillips said he serves customers of all backgrounds with other products and even offered to sell the same-sex couple who approached him nine years ago a cake that they could decorate.

The refusal brought him a censure from the Colorado Civil Rights Commission. His 2018 victory in the Supreme Court, however, turned on how that body treated Mr. Phillips and not the baker’s free speech and religious free exercise claims.

Ms. Waggoner argued the Phillips appeal before the Supreme Court.

In the 303creative case, ADF’s filing again raises broader Constitutional questions, asking the high court to decide “whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist’s sincerely held religious beliefs, violates the Free Speech or Free Exercise Clauses of the First Amendment,” as stated in the appeal.

The appeal also asks the Court to determine “whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable” under the 1990 Employment Division v. Smith decision that stated exemptions to a given law must apply equally to secular and religious claims.

Ms. Waggoner said she is optimistic the Supreme Court will agree to hear Mrs. Smith’s case.

For Ms. Smith, the case is about fundamental issues of freedom.

“Artists must be free to create eight and speak messages consistent with their convictions without the threat of unjust punishment,” she said. “Today, it’s me, but tomorrow, it could be you. My case is about the freedom of all Americans to live and work consistently with their beliefs. Free speech is for everyone, not just those who agree with the government.”

• Mark A. Kellner can be reached at mkellner@washingtontimes.com.

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