The Supreme Court has agreed to hear another case about what states can force people to do when it comes to their faith and their business. The issues at stake are nearly identical to Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case narrowly ruled in favor of cake baker, Jack Phillips, in 2018.
The latest case involves Lorie Smith, a Colorado-based website designer. Due to the authoritarian Colorado Anti-Discrimination Act, Smith worries she’ll face punitive measures if she refuses to create original online content that doesn’t align with her beliefs. When her case reached the 10th U.S. Circuit Court of Appeals, the court ruled that “the government may, based on content and viewpoint, force Lorie to convey messages that violate her religious beliefs and restrict her from explaining her faith.”
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Smith’s petition asks the Supreme Court to resolve, in part, “whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist’s sincerely held religious beliefs, violates the Free Speech or Free Exercise Clauses of the First Amendment.” This was the sole question in Masterpiece. Unfortunately, the Supreme Court ruled narrowly on that question, basically saying the state had shown significant animus toward religion and couldn’t do that.
But whether it’s Phillips’s bakery or Smith’s website, Colorado’s anti-discrimination statute clearly poses a tension between equality and liberty. If Smith declines to create a website for a gay couple’s wedding, is she protected by the First Amendment, or is she discriminating against their sexual orientation, a violation of CADA?
The 10th Circuit thought so, Chief Judge Mary Beck Briscoe wrote.
“Appellants refuse a same-sex couple’s request for a website celebrating their wedding but accept an opposite-sex couple’s identical request for a website celebrating their wedding. Considering this scenario, Appellants’ injury becomes clear. Although Appellants might comply with CADA in other circumstances, at least some of Appellants’ intended course of conduct arguably would “deny to an individual … because of … sexual orientation … the full and equal enjoyment of [goods and services],” she said.
According to Bostock v. Clayton County, a couple’s request for a wedding website is “inextricably bound up with” their sexual orientation. But now that Justice Anthony Kennedy has retired — he wrote Masterpiece’s majority opinion — it’s possible that this case might propel the court to rule on the central question once and for all. The Supreme Court has an opportunity to explain where the intersection of law falls when it comes to matters of free expression and anti-discrimination laws.
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Nicole Russell is a contributor to the Washington Examiner’s Beltway Confidential blog. She is a journalist in Washington, D.C., who previously worked in Republican politics in Minnesota. She is an opinion columnist for the Fort Worth Star-Telegram.
