A web designer who sued her state because she didn’t want to make wedding websites for same-sex couples – even though she wasn’t in the business of making wedding websites for anyone – has lost in court.
“We must also consider the grave harms caused when public accommodations discriminate on the basis of race, religion, sex, or sexual orientation,” Judge Mark Beck Briscoe wrote for the majority of a three-judge panel of the Tenth U.S. Circuit Court of Appeals in Denver. “Combatting such discrimination is, like individual autonomy, ‘essential’ to our democratic ideals.”
Lorie Smith and her company 303 Creative LLC sued Colorado over its anti-discrimination law, saying that banning her from discriminating against LGBTQ people is a violation of her First Amendment rights.
She sued over the same law that Masterpiece Cakeshop owner Jack Phillips took to the Supreme Court, but unlike Phillips, Smith hadn’t turned anyone away. Her 2016 lawsuit was a preemptive strike against the law backed by a religious right hate group.
The panel denied Smith’s appeal after a lower court threw out her lawsuit, which means that her case is dead unless the Supreme Court agrees to hear it.
In a 2-1 decision, the panel of judges ruled that the state of Colorado had a compelling interest to protect the “dignity interests” of oppressed minorities.
Smith’s lawsuit cited Bible verses and said that she “believes that God is calling her to promote and celebrate His design for marriage…between one man and one woman only.” She works with people who don’t follow her form of Christianity – she has taken work from a Jewish group before – but working for same-sex couples would violate her religious beliefs, she argued.
During oral arguments last year, the AP reports that Chief Judge Timothy Tymkovich asked Smith if she would accept work from a wedding planner who wanted her to create five websites: four for opposite-sex couples and one for a same-sex couple. Kristen Waggoner – a lawyer for the anti-LGBTQ hate group Alliance Defending Freedom (ADF) who represented Smith – said that she would refuse the entire order.
ADF has been backing cases like these throughout the country, arguing that anti-discrimination laws hurt people’s free speech and free exercise of religious rights. Here, they argued that a website has text and is, therefore, a form of protected speech.
But Colorado Solicitor General Eric Olson countered that if Smith was willing to make a website for an opposite-sex couple named Alex and Taylor but not for a same-sex couple with those two names, the text would be the same and free speech isn’t implicated. The real issue, he argued, is Smith’s homophobia.
“This really isn’t about cake or websites or flowers,” Lambda Legal’s 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.”
ADF said that it would appeal the ruling.