Colorado is urging the U.S. Supreme Court to uphold its anti-discrimination law in the face of a challenge by a Christian web designer who does not want to create custom wedding websites for same-sex couples and claims the state law violates her right to free speech.
In a brief filed Friday with the court, lawyers for the Colorado State Attorney’s Office said Colorado’s anti-discrimination law only requires that a business sell its goods or services to all members of the public and does not regulate speech.
“The Act addresses what a business does and not what it says. Any burden the Act might impose on a business’s expression therefore does not violate the First Amendment,” they said.
The high court is expected to hear the case of Lorie Smith this fall. Smith, who runs a graphic and website design business in the Denver area, wants to expand into wedding website services but says her Christian beliefs prevent her from designing a wedding website or graphics for a same-sex couple.
The Supreme Court said it would only consider the free speech issue in deciding whether a law that requires an artist to speak or stay silent violates the free speech clause of the First Amendment.
Smith’s lawyer, Jake Warner, said that Smith has designed websites for LGBTQ+ customers in the past. The legal challenge, said Warner, is not about discriminating against same-sex couples. Instead, it’s about state law forcing Smith to design custom websites and graphics that include ideas antithetical to her beliefs.
“Lorie always serves people based on the message not the people,” said Warner, “This case has nothing to do with the person. It’s all about what the government is forcing a person to express.” Though Smith does not currently design wedding websites, Warner said that in the future she would assess whether to accept a customer only on the messaging they requested on their website.
Colorado Attorney General Phil Weiser worries that, if the high court sides with Smith, the ruling could threaten other anti-discrimination laws across the country.
“The free speech claim advanced here we think is dangerous and is one that, if granted, would open up a range of loopholes to anti-discrimination law,” said Weiser, “Discrimination is not expression. It is illegal conduct.”
The Supreme Court has a majority of conservative judges who have recently overturned women’s constitutional right to an abortion and set a new precedent for gun control regulations in case in New York.
But Weiser is confident that the court will uphold Colorado’s law.
“We have seen over decades and decades the Supreme Court hold this line we are advancing in this case,” Weiser said. “It would be a dangerous and very problematic step to walk back from it, and we believe the court will take seriously any consequences of such action.”
In a 2-1 ruling last year, the Denver-based 10th U.S. Circuit Court of Appeals denied Smith’s attempt to overturn a lower court ruling that threw out her challenge. The judges said Colorado had a compelling interest in protecting the “dignity interests” of members of marginalized groups through the Colorado Anti-Discrimination Act.
The law, which prohibits discrimination on the basis of sexual orientation, is the same one at issue in the case of Colorado baker Jack Phillips that was decided in 2018 by the U.S. Supreme Court. Phillips won a partial victory when the high court said that the Colorado Civil Rights Commission had acted with anti-religious bias against Phillips. But it did not rule on the larger issue of whether a business can invoke religious objections to refuse service to LGBTQ people.
Last year, a Denver district judge ruled that Phillips had violated the state’s anti-discrimination law by refusing to make a birthday cake for a transgender woman. While Phillips argued that he could not make the cake because of its message, the judge said the case was about a refusal to sell a product, not compelled speech.
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