August 3, 2021 Philadelphia Gay News
A U.S. appeals court has ruled against a web designer who didn’t want to create wedding websites for same-sex couples and sued to challenge Colorado’s anti-discrimination law. A three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver denied Lorie Smith’s attempt to overturn a lower court ruling throwing out her legal challenge.
Smith and her Denver studio, 303 Creative, are now barred from stating on her company’s website that websites she creates must be consistent with her religious beliefs.
The appellate decision is yet another in a series of court rulings nationwide about whether businesses and agencies denying services to LGBTQ people is anti-LGBTQ bias or religious freedom of speech. In June, the U.S. Supreme Court decided the case of Fulton v. City of Philadelphia. That case dealt with litigation over local regulations based on the Free Exercise Clause and Establishment Clause of First Amendment to the U. S. Constitution.
In arguing the latest Colorado case for Smith, the Alliance Defending Freedom asserted that Smith’s Christian beliefs were violated by the state’s anti-discrimination law. This argument is similar to that in Fulton.
But the narrow 2-1 ruling stipulated that Colorado “has a compelling interest in protecting both the dignity interests of members of marginalized groups,” like same-sex couples. The ruling states that Colorado’s civil rights law “permissibly compels [Lorie Smith’s] speech,” and concluded, “a faith that enriches society in one way might also damage society in [an]other ….”
Smith’s case had a similar outcome to the 2018 Colorado case of baker Jack Phillips and Masterpiece Cakeshop. In that case Phillips refused to design a custom wedding cake for a gay male couple based on Phillips’ religious beliefs. The Colorado Civil Rights Commission found that the bakery had discriminated against the couple and issued specific orders for the bakery. As in Smith’s case, the appellate courts agreed with the state’s anti-discrimination law.
Phillips pursued his case to the U.S. Supreme Court, where in a 7–2 decision, the Court ruled on narrow grounds that the Commission did not employ religious neutrality, thus violating Masterpiece owner Phillips’ rights to free exercise, and reversed the Commission’s decision.
As in Fulton, the court did not rule on the broader intersection of anti-discrimination laws, free exercise of religion and freedom of speech. And also as in Fulton, the ruling focused on the Commission’s perceived lack of religious neutrality.
Because the high court did not rule in Masterpiece Cakeshop v. Colorado Civil Rights Commission on the larger issue of whether a business can invoke religious objections to refuse service to LGBTQ people, these cases continue to come before the court.
Now that the court has a 6-3 conservative bias, it appears unlikely that as these cases come up from the appellate courts, they will be decided in favor of LGTBQ people. As PGN reported in June, that is how the Supreme Court has been ruling on instances of religious freedom.
The Arizona-based Alliance Defending Freedom that represented Smith also represented Phillips. Founded in 1994 by “Christian leaders concerned about religious freedom,” the group said it would appeal the ruling in Smith’s case.
“The government should never force creative professionals to promote a message or cause with which they disagree. That is quintessential free speech and artistic freedom,” the group’s senior counsel, John Bursch, said in a statement.
The LGBTQ civil rights advocacy group Lambda Legal submitted a brief supporting the Colorado law in Smith’s case.
“This really isn’t about cake or websites or flowers,” Lambda Legal senior counsel Jennifer C. Pizer said in a statement. “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.”
Judge Mark Beck Briscoe wrote in the majority opinion in Smith’s case that “we must also consider the grave harms caused when public accommodations discriminate on the basis of race, religion, sex, or sexual orientation. Combatting such discrimination is, like individual autonomy, ‘essential’ to our democratic ideals.”
In his dissent, Chief Judge Timothy Tymkovich wrote that “this case illustrates exactly why we have a First Amendment. Properly applied, the Constitution protects Ms. Smith from the government telling her what to say or do.”
The majority also ruled that exempting Smith’s company 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.
The 10th circuit also placed a gag order on Smith to prohibit the web designer from explaining on her page what type of websites are consistent with her religious beliefs, and two judges also said Smith was “rightfully wary of offering wedding-related services and may challenge” the law “as chilling [her] speech.”
A 2020 survey of newlyweds by WeddingWire.com revealed that 79% of couples created a website for family and friends to track the nuptials.
In 2019, a divided three-judge panel of the 8th U.S. Circuit Court of Appeals found in favor of two Christian filmmakers who said they should not have to make videos celebrating same-sex marriage under Minnesota’s anti-discrimination law because the videos are a form of speech protected by the First Amendment.
Carl and Angel Larsen of Telescope Media Group in St. Cloud are being represented by Alliance Defending Freedom.
In June, Phillips of Masterpiece Bakeshop was fined $500 by the Colorado Commission in yet another case for refusing to design a cake celebrating Autumn Scardina’s gender transition.
Alliance Defending Freedom General Counsel Kristen Waggoner, who represented Phillips in court, said the group will “continue to fight for Phillips’ religious freedoms despite ongoing persecution by LGBT activists.”
Waggoner said Phillips’ latest case “represents a disturbing trend: the weaponization of our justice system to ruin those with whom the activists disagree.”
“Jack Phillips serves all people but shouldn’t be forced to create custom cakes with messages that violate his conscience,” Waggoner stated. “We will appeal this decision and continue to defend the freedom of all Americans to peacefully live and work according to their deeply held beliefs without fear of punishment.”
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