The Supreme Court has already ordered Colorado’s civil rights commission to give religious artists who oppose same-sex marriage a fair hearing when deciding whether to fine them for refusing to work at same-sex ceremonies.
But Colorado web designer Lorrie Smith says it’s time for judges to go further and rule that artists have an absolute First Amendment right not to be forced to work on something they oppose.
Ms Smith says having to design products for same-sex marriages goes against her Christian faith. She takes her argument to the Supreme Court next week, and her lawyer says it’s an opportunity for the judges to uphold her free speech rights.
“Colorado is treating this case as if Lorie makes identical devices in bulk or as if it is something you take off the shelf and deliver. But as a custom website designer, every message she creates is designed for that occasion, that couple, and in that way, compels her speech,” said Kristen Wagoner, an attorney with Alliance Defending Freedom representing Ms. Smith.
Their case comes before the judges four years after another case in Colorado: Jack Phillips, a baker, was penalized by the state civil rights commission for refusing to bake a wedding ceremony cake specifically for a same-sex couple.
The commission said it was refusing a service, which violated Colorado’s public accommodations law. The law says that companies cannot discriminate in the provision of their services based on race, religion or sexual orientation.
Phillips argued that his cakes were First Amendment speech and forcing him to create one for a same-sex wedding violated his rights.
The Supreme Court ruled that the commission had shown an undoing animosity towards Mr. Phillips and remanded the case for a replay. But the judges shied away from a big ruling on constitutional principles.
The issue has leaked in the years since without any new guidance from the high court.
Approximately 45 states have some form of public accommodations law, but not all of them specifically cover sexual orientation.
Ms. Smith launched her web and graphic design business, 303 Creative, in 2012. She says she has been unable to get into the wedding business due to Colorado’s public accommodations law.
She, like Phillips, says she has clients who are LGBTQ, but she can’t design custom artwork for them that violates their faith.
“There are some messages that I can’t create no matter who requests them,” Ms. Smith said.
She said that cost her some business, prompted threats and caused some of her clients to be harassed. A neighbor also posted her address on social media. She has since moved on.
“It’s been a ride of hills and valleys,” he told the Washington Times.
“I hope and continue to pray that the court rules to protect the right to speak freely, not just for me, but for everyone,” he added.
However, the state of Colorado argued in its court filing that its public accommodations law is necessary to ensure that all state residents can participate equally in the marketplace.
“Customers don’t look at, love or adore in the same way. But all expect to participate in the public market as equals. A business that rejects these customers because of who they are hurts them,” the state brief said.
Colorado Attorney General Phil Weiser said in an August statement that state laws protect the dignity of all people.
“Colorado law regulates ordinary business sales. The mere act of selling something to everyone on equal terms is not expressive conduct, and the law does not oblige companies to speak or remain silent,” he said.
The case is 303 Creative v. Elenis.