Here we go again: Does a Colorado law punish professionals if they refuse to publish material that conflicts with their deeply held religious beliefs? The legal organization that defended Christian baker Jack Phillips and won its Supreme Court case in 2018, Alliance Defending Freedom, is making that case in court.
On Oct. 25, ADF filed an appeal of a federal district court’s order. The order in question upheld a Colorado provision that has made it a “discriminatory practice and unlawful for a person” to refuse their goods or services to a person “because of disability, race, creed, color, sex, sexual orientation, marital status, national origin.”
In a May ruling, 303 Creative v. Elenis, the court said this was not an issue of compelling a web designer to create speech with which she disagreed because it “assumes the constitutionality” of the Colorado law. However, two other court cases in other states with similar laws have disagreed with this Colorado court. In Minnesota and Arizona, respectively, the courts have recognized that it’s not discriminatory to refuse to create a message that violates a person’s deeply held religious beliefs.
This law specifically affected Colorado-based web designer Lorie Smith. She owns a studio, 303 Creative, and, according to this law, Smith could be hired to design and publish websites that promote messages that conflict with her beliefs, and, if she refused, she could be breaking the law. This law also says Smith cannot express her religious beliefs on her website by stating what messages she will not work with.
I spoke to the lead attorney handling the case, Jonathan Scruggs. He said this case mirrors the Masterpiece Cakeshop case ADF handled in 2018, with one difference being that they are trying to avoid what Phillips went through by dealing with this preemptively, before anybody launches a formal anti-discrimination complaint against the business.
“The issue here is compelled speech,” Scruggs said. “The U.S. Supreme Court didn’t decide the compelled speech issue [in Masterpiece]. What sane person would follow in Jack’s footsteps and risk getting sued, going through laborious, expensive litigation, and suffering penalties when they could ask the court ahead of time, ‘Does this violate my free speech rights?’”
Unlike Masterpiece, which had the Supreme Court justices wrangling over whether baking a specific, custom-designed cake for a gay wedding was a form of “speech,” publishing a website is actual, literal speech, so it makes that discussion much simpler.
Scruggs said that this specific law is problematic in today’s world, where websites abound. “A lot of this case is how Colorado is interpreting the law. The laws have traditionally applied to places like hotels. But now they’ve been expanding, especially to places that create speech, like websites.”
So this case, like those, appears to be on solid footing. If this case continues to be appealed, attorneys could yet again be asking the Supreme Court to make a ruling on compelled speech.
Nicole Russell (@russell_nm) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is a journalist who previously worked in Republican politics in Minnesota.
