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The effort by state officials to compel Christians to create messages and celebrate activities that go against their religious beliefs has not only negatively impacted its small business community but also its hard-working taxpayers.
[UPDATE] The state of Colorado has agreed to pay more than $1.5 million in attorneys’ fees for violating the free speech rights of Lorie Smith, a web designer and plaintiff in the landmark Supreme Court case 303 Creative v. Elenis.
Smith brought her challenge to Colorado’s Anti-Discrimination Act in 2016, claiming that the law violated her First Amendment rights by compelling her to create messages that violate her conscience. Smith, a devout Christian, wanted to create websites celebrating traditional weddings, but faced the possibility of being punished by the state if she refused to also celebrate same-sex weddings.
Colorado’s law prohibits businesses from denying “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation” and also prohibits businesses from distributing any communication saying that services will be denied based on a person’s membership in a protected class.
The law, however, didn’t just require businesses to provide basic services to members of a protected class; Colorado has also forced businesses to create any message that a customer of a protected class demanded, even if that message violated a business owner’s conscience or religious beliefs.
Masterpiece Cakeshop owner Jack Phillips faced such a situation in that he willingly sold cakes to homosexuals and transgenders shopping at his store but refused to create a cake celebrating a homosexual wedding. After being sued in 2012, he eventually prevailed at at the Supreme Court in 2018. Yet due to the limited scope of the Court’s ruling, Phillips was immediately sued again for refusing to make a cake celebrating a gender transition. The baker finally won freedom from his legal battles last month after 12 years of persecution due to Colorado’s law.
Smith’s challenge to the law also reached the Supreme Court, which ruled in the summer of 2023 that Colorado’s law violated Smith’s free speech rights. The Court noted that Smith served customers of all groups including homosexuals; she simply did not want to be forced to create websites for homosexual weddings, an act which violates her religious beliefs.
Justice Neil Gorsuch, who authored the majority opinion of the Court, wrote,
“The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees…. The First Amendment’s protections belong to all, not just to speakers whose motives the government finds worthy. In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.”
On Tuesday, Smith’s legal representation, Alliance Defending Freedom, announced that Colorado had agreed to pay over $1.5 million in attorney’s costs for violating her rights. Although Colorado officials are at fault, Colorado’s taxpayers will be the ones footing the bill.
“The government can’t force Americans to say things they don’t believe, and Colorado officials have paid and will continue to pay a high price when they violate this foundational freedom,” ADF CEO and President Kristin Waggoner stated, adding,
“For the past 12 years, Colorado has targeted people of faith and forced them to express messages that violate their conscience and that advance the government’s preferred ideology…Billions of people around the world believe that marriage is the union of one man and one woman and that men and women are biologically distinct. No government has the right to silence individuals for expressing these ideas or to punish those who decline to express different views. Political and cultural winds shift, but the freedom to speak without fear of censorship is a God-given constitutionally guaranteed right, essential for a flourishing society and self-governing people.”
Smith responded by first thanking her attorneys at ADF, who stood by her while she endured Colorado’s censorship for seven years and put her wedding website business on hold. She then reminded others that her case had ensured freedom for all Americans who want to live according to their faith, stating,
“As the Supreme Court said, I’m free to create art consistent with my beliefs without fear of Colorado punishing me anymore. This is a win not just for me but for all Americans—for those who share my beliefs and for those who hold different views. I love people and work with everyone, including those who identify as LGBT. For me, it’s always about what message is requested, never the person making the request. I hope that everyone will celebrate the court’s decision upholding this right for each of us to speak freely.”
{Published on June 30, 2023} The Supreme Court just handed free speech a dramatic victory in 303 Creative v. Elenis with a 6-3 ruling. The landmark case, centered on the First Amendment’s protection of speech and religious liberty, comes during an era where business owners fear legal ramifications for refusing to provide services that violate their convictions.
Alliance Defending Freedom celebrated the decision, calling it a “victory for every American.”
A Christian web designer sued Colorado over an accommodation law that could ultimately force her to violate her faith or lose her business. The state has used the Colorado Anti-Discrimination Act (CADA) to force business owners to violate their faith before, most notably in the case of Jack Phillips in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Lorie Smith, owner of 303 Creative, serves everyone despite their sexual orientation, religion, etc., but she refuses to communicate messages that violate her faith. For example, Smith would have no problem creating a blog site for a gay man, but she will not create a website celebrating a same-sex wedding.
While Smith hasn’t yet been sued for refusing any services, she, backed by Alliance Defending Freedom (ADF), proactively sued Colorado in a pre-enforcement challenge. Such a procedure takes action against the law before the law takes action against the citizen. ADF has a successful track record with pre-enforcement cases, such as Telescope Media Group v. Lucero and Brush & Nib Studio v. City of Phoenix.
The U.S. District Court and the 10th Circuit Court of Appeals ruled against Smith before her victory at the United States Supreme Court.
When the Supreme Court agreed to hear 303 Creative in 2022, it did so to address the following issue: Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.
Justice Neil Gorsuch, who has reputably been a strong proponent of free speech and religious exercise, delivered the Opinion of the Court:
“The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees…. The First Amendment’s protections belong to all, not just to speakers whose motives the government finds worthy. In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.”
Gorsuch went on to explain the majority’s reasoning, writing,
“…as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong. Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider ‘unattractive, misguided, or even hurtful.’ But tolerance, not coercion, is our Nation’s answer. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. Because Colorado seeks to deny that promise, the judgment is reversed.”
The reversal is in reference to the 10th Circuit Court of Appeals ruling against Lorie Smith.
Kristen Waggoner, CEO of Alliance Defending Freedom and Lorie Smith’s legal representative in this case, responded to the Court’s finding by stating,
“The U.S. Supreme Court rightly reaffirmed that the government can’t force Americans to say things they don’t believe. The court reiterated that it’s unconstitutional for the state to eliminate from the public square ideas it dislikes, including the belief that marriage is the union of husband and wife. Disagreement isn’t discrimination, and the government can’t mislabel speech as discrimination to censor it. Lorie works with everyone, including clients who identify as LGBT. As the court highlighted, her decisions to create speech always turn on what message is requested, never on who requests it. The ruling makes clear that nondiscrimination laws remain firmly in place, and that the government has never needed to compel speech to ensure access to goods and services. This is a win for all Americans. The government should no more censor Lorie for speaking consistent with her beliefs about marriage than it should punish an LGBT graphic designer for declining to criticize same-sex marriage. If we desire freedom for ourselves, we must defend it for others.”
Currently, there are more than 10 business owners in litigation over the same matter as Smith and Phillips. Emilee Carpenter, a New York-based photographer, for example, is suing the Empire State in tandem with Lorie Smith’s concern. Carpenter’s case has been argued before the Second Circuit Court of Appeals and is awaiting a response.
Jack Phillips of Masterpiece Cakeshop v. Colorado is in court for a second time, this time for refusing to custom design a gender transition cake. While the Supreme Court ruled in Phillips’ favor in 2018, the decision was narrowly based on procedural animus in the lower courts and thus did not set an impactful precedent. In a video interview with the Standing for Freedom Center, ADF Senior Counsel Jake Warner said,
“This cruelty must stop. One need not agree with Jack’s views to agree that all Americans should be free to say what they believe, even if the government disagrees with those beliefs.”
Several other business owners of faith are currently in lower court litigation for the same issue. But Barronelle Stutzman, the elderly owner of Arlene’s Flowers who lost her case against a similar anti-discrimination law in Washington State, was so exhausted by the fight that she ended up selling her business to her employees and retiring.
The decision in 303 Creative applies to every state across America. The reach, or precedent, of the Supreme Court’s decision is perhaps the most significant part about this case, since past decisions on similar cases, i.e., Masterpiece Cakeshop v. Colorado, garnered very narrow rulings that impacted only a few cases.
Alliance Defending Freedom will now submit supplemental briefs to each lower court currently litigating similar issues, and it will be up to the courts to rule based on the Supreme Court’s precedent in 303 Creative. This could mean the cases are dismissed or they provide a ruling consistent with 303 Creative. Since the Supreme Court agreed to hear 303 Creative in early 2022, many lower courts have intentionally awaited their decision for guidance. This indicates that the lower courts will rule consistently with 303 Creative, otherwise they would not have waited.
Today’s decision is a much-needed disruption to decades of harassment, intimidation, discrimination, and unwarranted bigotry toward people of faith who serve everyone, but simply refuse to provide expressive services that violate their faith. The Church in America should be very thankful for Lorie Smith’s convictional courage, Kristen Waggoner’s legal expertise, and Alliance Defending Freedom’s powerful influence in defending free speech and religious liberty.
Jack Phillips, whose life has been marred by over a decade of litigation for refusing to custom design a cake that would celebrate first a gay wedding and then a gender transition, never asked to be a public figure. He never asked for this disruption in his life. He was simply a man who wanted to serve his community, regardless of race, creed, gender, sexual orientation, etc., in a manner faithful to God.
The harassment couldn’t be clearer. Jack Phillips’ current lawsuit is his third. His first lawsuit was the Masterpiece Cakeshop decision referenced earlier. Despite the fact that the couple could have asked another baker to design their cake, LGBTQ activists refused to leave Phillips alone. Phillips was also sued for refusing to design a gender-transition cake. When the legal arbiter of the case heard on record that the petitioner was literally calling Phillips’ bluff, the commission dismissed the case for harassment. If that wasn’t enough, though, Phillips was sued again by the same person who sued him the second time, though through a different legal conduit since the Colorado Commission had dismissed the earlier case.
This is textbook harassment, the type you don’t see being directed toward the LGBT community. Despite Justice Sotomayor’s dissenting opinion in 303 Creative, Christians are NOT trying to trample the rights of the LGBT community with this case. Christians are not saying, “We won’t serve you because you’re gay.” That’s not the issue. But Sotomayor’s judicial activism was so deceptive that ADF’s Kristen Waggoner said the dissenting opinion appeared to respond “to a case that wasn’t even before the Court.”
She’s right. The issue of whether business owners can say, “I won’t serve you because you’re gay,” was not the legal question before the Court in 303 Creative.
Church, this decision is worthy of our praise to God. This decision advances our ability to represent biblical truth without legal assault. This decision provides us with the opportunity to be Daniels, Josephs, and Esthers in a modern-exilic cultural posture.
This decision is also proof that voting matters. This isn’t about partisanship or candidates, as the majority opinion in 303 Creative included justices appointed by multiple presidents. But this is about taking the simple step of getting to the voting booth and casting a vote, not for a president or representative, but for the Lorie Smiths, Jack Phillips, Emilee Carpenters, and Barronelle Stutzmans of the world.
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