Colorado’s 303 Creative Supreme Court case pits LGBTQ rights vs. free-speech claim


LITTLETON, Colo. — When the Supreme Court ruled narrowly in 2018 for a Colorado baker who refused to create a wedding cake for a gay couple, the justices avoided declaring a clear winner in the cultural conflict between LGBTQ rights advocates and those who say their religious beliefs forbid countenancing same-sex marriage.

It turns out that the next such case, which the Supreme Court takes up Monday, was just a short drive away.

About five miles from Jack Phillips’s Masterpiece Cakeshop, the focus of the battle four years ago, is a cheerful office in a nondescript building. Graphic designer Lorie Smith says the same Colorado public accommodation law that Phillips challenged, which forbids discrimination on the basis of sexual orientation, also violates her deeply held religious views and free-speech rights.

Smith wants to expand her business to create wedding websites but only to tell the stories of brides and grooms “through God’s lens.” And she wants to be able to tell same-sex couples on her 303 Creative LLC website that she will not create such platforms for them.

“Colorado is censoring and compelling my speech and really forcing me to pour my creativity into creating messages that violate my convictions,” Smith said in a recent interview, with one of her lawyers sitting nearby. “There are some messages I cannot create.”

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Two courts have ruled against Smith, saying Colorado has a compelling interest to require that businesses that are open to the public serve all of the state’s citizens.

No matter how authentic Smith’s broad free-speech argument may be, state Attorney General Philip J. Weiser (D) told the Supreme Court in his brief, it would encompass not only a business’s religious beliefs “but also objections motivated by ignorance, whim, bigotry, caprice, and more — including pure expressions of racial, sexist, or anti-religious hatred.”

When the court took Smith’s case, it declined to hear Smith’s claim that Colorado’s law violates her religious freedom. Nor did it agree to hear her request to overturn Supreme Court precedent on neutral laws that might have implications for religious believers.

Instead, the justices propose to answer this question: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”

And some court observers say that decision could have even more impact.

Smith is represented by the same conservative legal organization that defended Phillips. Her case has been years in the making. But it arrives at a moment of discordancy over the LGBTQ rights movement.

Nationally, Congress is on the verge of providing landmark federal recognition of same-sex marriage, a step unthinkable even a decade ago. But the effort is motivated significantly by fear that the Supreme Court might one day renege on the constitutional right for same-sex couples to marry that it found in 2015.

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In Colorado, residents last year saw their history-making governor, Jared Polis, marry first gentleman Marlon Reis in an intimate ceremony still grand enough to merit high society coverage. But last month, the LGBTQ community, and the nation, was shocked when a gunman who stormed a gay nightclub in Colorado Springs, shooting dozens of patrons and killing five.

Some wonder how the state has come to play such a prominent role in the Supreme Court’s consideration of whether same-sex marriage will be treated differently from traditional marriage.

The Colorado legislature never approved same-sex marriage; instead, it was decreed by federal courts. But far earlier, by 2008, the state had outlawed discrimination against gay people in housing, public accommodation and employment, and it established civil rights protections on the basis of gender identity.

“It is really wild to think about how far we’ve come,” said Garrett Royer, the director of One Colorado, an advocacy group for the LGBTQ community. But he added that he thinks the success of the movement has made the state something of a target.

“I think the conservative movement is looking at, how do we chip away at this very progressive nondiscrimination law in Colorado?” Royer said. “And that has implications at the national level to take back these protections.”

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In an interview, Smith declined to answer whether she thinks same-sex marriage should be legal, and she said her case is personal, not political. She works for LGTBQ clients on other topics, she said. A victory for her, she said, would be just as valuable to a gay artist who does not want to create for a cause in which she does not believe.

The case comes before a court much changed since the 2018 decision, which left the Colorado law undisturbed but said officials enforced it unfairly against Phillips because of religious bias on the part of some.

Justice Anthony M. Kennedy, who wrote that thread-the-needle opinion as well as the court’s landmark decisions on gay rights, including marriage, has retired. Also gone is a dissenter in the Phillips case, Justice Ruth Bader Ginsburg. She was the first justice to officiate at a same-sex wedding and was an advocate who warned that treating same-sex couples differently from opposite-sex ones would afford the new unions only a “skim-milk” version of marriage.

Kennedy and Ginsburg were replaced by more-conservative justices on a court that has been protective of free speech rights and increasingly sympathetic to challenges brought by religious interests. It is highly unlikely that the court took Smith’s case simply to affirm the lower-court rulings.

Kristen Waggoner, the president, chief executive and general counsel of Alliance Defending Freedom, the conservative organization representing Smith, said the court need not break new ground to rule for the businesswoman.

“Public accommodation laws and the First Amendment have coexisted peacefully for years and years, for decades,” Waggoner said in an interview. “This case isn’t about whether they will continue to do so; it’s just about whether the court will continue to follow the precedent that’s already set.”

Waggoner’s brief relies on seminal First Amendment cases that found that the government may not, in her words, “compel speakers to endorse certain messages and eschew others.”

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In 1995, the court unanimously ruled — in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston — that a public accommodation law could not be used to compel organizers of Boston’s St. Patrick’s Day parade to admit a gay rights group. And Waggoner’s brief begins with the court’s famous 1943 decision that Jehovah’s Witnesses students in West Virginia could not be compelled to salute the flag or recite the Pledge of Allegiance.

Colorado’s law “turns those principles upside down, such that artists must now speak government-sanctioned messages, stop speaking their own preferred message, or leave the market in which they hope to participate,” Waggoner writes.

Colorado responds that even if the websites Smith wants to produce are expressive — she has not actually accepted commission for one to avoid running afoul of the law — she is conflating free speech with selling a product. The state’s residents should not have to worry about whether a business will reject them “because of who they are.”

The law’s application “does not turn on what a business chooses to sell,” Weiser writes in the state’s brief. “It simply requires that, once a business offers a product or service to the public, the business sells it to all.”

Smith, the state says, is free to offer “only websites that include biblical quotes describing marriage as the union of one man and one woman.” But then the company “must sell whatever it offers to customers regardless of their race, religion, sexual orientation, or other protected characteristic . . . Both believers and atheists can choose to buy its websites with biblical quotes.”

The state says that Smith proposes to post on her company website the message that “I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman.”

Under Colorado’s protection of gay citizens, Weiser wrote, “this amounts to an announcement of illegal discrimination similar to a ‘white applicants only’ sign.”

It is also not enough that other companies would provide similar marriage services to same-sex couples, the state says. The court made that clear decades ago, ruling against a motel that wanted to serve only White guests and a restaurant owner who said an integrated dining room would violate his religious beliefs.

Smith’s lawyer responds that “throwing in racism is simply an attempt to shut down the debate and frankly it’s offensive to malign people like that.” She said Smith would create a website for an interracial couple or an interfaith couple — so long as the couple was heterosexual.

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What matters, Waggoner said, is not whether Smith is creating speech for profit — “our First Amendment rights aren’t contingent on whether you’re trying to earn a living’ — but that it is a custom project that reflects Smith’s beliefs.

Even a finished product might be protected, Waggoner said: Think of the rock star who doesn’t want his recorded songs played at the rallies of a politician he abhors.

Smith is supported by a long list of religious organizations and academics who say creating custom speech is different from past public accommodation cases.

Law professors Dale Carpenter, a supporter of gay rights, and Eugene Volokh, a First Amendment specialist, said in a friend of the court brief that a line can be drawn. On the protected side of those who create expression related to weddings: “web site creators, writers, photographers, painters, singers, and similar speakers.” On the other, those who perform distinct activities “such as baking, clothing design, architecture, and other media.”

The state of Colorado is supported by the Justice Department, which, under the Biden administration, has switched its position since the Phillips case. Also supporting Colorado are the free-speech-defending American Civil Liberties Union and others.

The Colorado law does not deserve the court’s most exacting scrutiny, the ACLU says, because it is aimed at making services open to all, not censoring Smith’s opinions about marriage.

The critical inquiry, the organization says, “is not whether a business’s act is expressive, as 303 Creative insists, but whether the government’s interest in regulating it is aimed at expression.”