If we learned anything from Jack Phillips and his Masterpiece Cakeshop, it’s that state public accommodation laws are now a proxy for the government to target a person’s faith and business, especially if they’re intertwined. Just ask website designer Lorie Smith.
She shares some similarities with Phillips: Both are people of faith who integrate their spiritual beliefs into their creative occupation, have been targeted by the Colorado Anti-Discrimination Act, and requested that their cases be heard in the Supreme Court. Phillips’s case, of course, was heard, and the Supreme Court decided narrowly in his favor in 2018.
On Friday, attorneys representing Smith at the Alliance Defending Freedom petitioned the Supreme Court to hear her case, perhaps pushing the Supreme Court for a more broad ruling on free speech and antagonistic public accommodation laws that seem to compel people to act against their faith in the workplace, effectively punishing them for their religious beliefs.
The petition reads in part: “Lorie Smith is a website designer who creates original, online content consistent with her faith. She plans to (1) design wedding websites promoting her understanding of marriage, and (2) post a statement explaining that she can only speak messages consistent with her faith. But the Colorado Anti-Discrimination Act (CADA) requires her to create custom websites celebrating same-sex marriage and prohibits her statement—even though Colorado stipulates that she ‘work[s] with all people regardless of … sexual orientation.’”
The court ruled that Colorado can force Lorie Smith to design and publish websites promoting messages that violate her religious beliefs.
If the state can override the First Amendment in this situation, then everyone’s rights are on the chopping block. https://t.co/kFnfbUVI1H
— Alliance Defending Freedom (@AllianceDefends) September 26, 2021
Smith wound up petitioning the Supreme Court because of the 10th Circuit Court of Appeals’s mind-boggling 2-1 ruling on her case. The court held that Colorado’s Anti-Discrimination Act forced Lorie “to create websites—and thus, speech—that [she] would otherwise refuse.” The decision hinged on the fact that Smith’s business is unique and creative — something that was also important to the Supreme Court in Phillips’s case.
In his dissent, 10th Circuit Chief Judge Timothy Tymkovich said: “The majority uses the very quality that gives the art value—its expressive and singular nature—to cheapen it. In essence, the majority holds that the more unique a product, the more aggressively the government may regulate access to it—and thus the less First Amendment protection it has.” He said the ruling “subverts our core understandings of the First Amendment.”
Conservatives were excited when the Supreme Court took up Masterpiece Cakeshop v. The Colorado Civil Rights Commission because Jack Phillips’s First Amendment rights were so obviously being violated. They hoped for a broad and final ruling cementing First Amendment rights in the workplace. They did not get it.
Perhaps now, this case, with its particular nuances and the astonishing 10th Circuit ruling, will beckon the Supreme Court not only to hear it but rule in a way that protects the First Amendment rights of faith-based, creative business owners going forward.
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 was the 2010 recipient of the American Spectator’s Young Journalist Award.
