First Amendment

Web designer who offers wedding websites can be compelled to serve same-sex couples, 10th Circuit says

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A Colorado anti-discrimination law can be used to compel a website designer who wants to create wedding websites to offer her services to people celebrating same-sex marriages, a federal appeals court ruled Monday.

The 10th U.S. Circuit Court of Appeals at Denver ruled 2-1 against website designer Lorie Smith and her company, 303 Creative, in a lawsuit filed before the law was used against her. She was represented by Alliance Defending Freedom, a conservative Christian nonprofit, according to a press release and an Alliance Defending Freedom blog post.

Alliance Defending Freedom also represented Christian baker Jack Phillips, who refused to bake a cake for a same-sex wedding. The U.S. Supreme Court ruled narrowly for Phillips in Masterpiece Cakeshop v. Colorado Civil Rights Commission, holding that the Colorado Civil Rights Commission had violated his rights by showing hostility to his religious explanation.

Smith plans to appeal her case, 303 Creative v. Elenis.

Creating websites for same-sex weddings would violate Smith’s sincerely held religious beliefs, according to Smith and her lawyers. She is willing to create other kinds of websites for gay clients that don’t violate her religious beliefs, however.

The Colorado law’s accommodation clause bars public accommodations from refusing to provide equal access to services because of sexual orientation. The law’s communication clause says public accommodations cannot publish any communication indicating that full access to services will not be provided because of sexual orientation.

Neither clause violates Smith’s free speech and free exercise rights under the First Amendment, the appeals court majority said.

The appeals court acknowledged that Smith’s websites are pure speech implicating her unique creative talents. But Colorado “has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace,” the court said.

“We agree with the dissent that a diversity of faiths and religious exercise, including appellants’, ‘enriches’ our society,” the majority said. “Yet a faith that enriches society in one way might also damage society in other ways, particularly when that faith would exclude others from unique goods or services.”

The dissent said no other case had gone as far as the majority in its conclusion that the state has a compelling interest in forcing Smith to speak a government-approved message against her religious beliefs.

“The majority takes the remarkable—and novel—stance that the government may force Ms. Smith to produce messages that violate her conscience,” the dissent said.

“It seems we have moved from ‘live and let live’ to ‘you can’t say that,’” the dissent said.

The author of the majority opinion is Judge Mary Beck Briscoe. The dissenter is Chief Judge Timothy Tymkovich.

The Volokh Conspiracy, Newsweek, Colorado Public Radio, the Christian Post and Reason have coverage, while How Appealing links to the opinion.

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