The Denver Gazette

Does Colorado law clash with First Amendment?

BY MICHAEL KARLIK The Denver Gazette

For the second time in recent history, the U.S. Supreme Court is hearing a case out of Colorado involving a Christian business owner’s refusal to provide wedding services tailored to same-sex couples. On Monday morning, the justices participated in arguments in the appeal of 303 Creative LLC et al. v. Elenis et al. Here are the key points to know:

Question: Who is suing whom?

Answer: Lorie Smith owns 303 Creative LLC, a website and graphic design business. She wants to create wedding websites, but her religious beliefs preclude her from recognizing same-sex marriage. So, Smith not only wants to refuse to design same-sex sites, but she wants to advertise that policy on her company page. She is suing members of the Colorado Civil Rights Commission and Attorney General Phil Weiser.

What consequences has Smith faced for not being willing to design wedding websites for same-sex couples?

Currently, none. The government has

argued she does not have standing to sue, and the lower courts initially agreed.

Could the government take action against her someday?

Yes, the Colorado Anti-Discrimination Act (CADA) makes it illegal to refuse to provide goods and services in a place of public accommodation — a business — based on sexual orientation, race and other traits. It also prohibits communication that indicates someone is “unwelcome, objectionable, unacceptable, or undesirable” because of their sexual orientation, which would implicate Smith’s intended statement that she will not build same-sex wedding sites

What happened to the lawsuit before it got to the Supreme Court?

A federal trial judge sided with the government, analogizing Smith’s desire to turn down same-sex wedding websites to placing a “WHITES ONLY” sign near the entrance of a business. On appeal, the U.S. Court of Appeals for the 10th Circuit split, 2-1, in ruling against Smith.

The majority acknowledged CADA compelled Smith to “speak” in favor of same-sex weddings by creating websites for LGBTQ couples, the same as she would by serving opposite-sex couples. However, the majority found the compulsion justified under the First Amendment because of the government’s legitimate interest in combating discrimination.

The dissent did not believe Colorado was allowed to force Smith to convey messages that violate her conscience.

What is the difference between Smith’s case and the Masterpiece Cakeshop decision?

In 2018, the Supreme Court decided another case out of Colorado involving a Christian baker who similarly did not want to endorse a pro-LGBTQ message in making wedding cakes. The court resolved that appeal, Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission, on narrower grounds. In contrast, Smith’s case addresses whether the First Amendment’s free speech guarantee allows a public accommodation law, like CADA, to “compel an artist to speak or stay silent.”

Who is involved in arguing the case?

The Colorado Attorney General’s Office is representing the state. The Christian advocacy group Alliance Defending Freedom is arguing for Smith.

What are other groups saying about the litigation?

Smith’s appeal has garnered significant attention from groups that believe the case would either give the green light for businesses to discriminate or force proprietors to violate their beliefs in the marketplace.

Those weighing in in favor of Smith include First Amendment scholars, Christian educational organizations and several Republican-led states.

In Colorado’s corner are 137 Democratic members of Congress, dozens of mayors and local governments, and a different group of First Amendment scholars.

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2022-12-06T08:00:00.0000000Z

2022-12-06T08:00:00.0000000Z

https://daily.denvergazette.com/article/281698323778381

The Gazette, Colorado Springs