Colorado’s attorney general on Friday presented his office’s arguments in an upcoming U.S. Supreme Court case involving a Denver-area graphic designer who says the state’s anti-discrimination laws violate her rights of free speech.
Phil Weiser, in a written brief, argued that Colorado’s public accommodation law does not infringe on the protected free speech of business owners. Lorie Smith, owner of 303 Creative, a graphic design company, is asking the Supreme Court to give her the right to post a message on her website that she will not create wedding websites for same-sex couples because of her strong religious beliefs. .
“Basically, 303 Creative does not want to offer its services equally to all customers,” Weiser said at a press conference, where he outlined his argument in defense of the state law. “An ad that effectively says ‘straight couples only’ is not protected speech under the First Amendment.”
Weiser’s filing is a small procedural step forward in the case, which has been winding its way through Colorado courts for years. Last year, the Denver-based 10th Circuit Court of Appeals issued a 2-1 ruling that Smith’s request would violate the Colorado Anti-Discrimination Act and that the act itself does not violate the First Amendment.
Smith appealed the decision. In February, the Supreme Court agreed to take up the free speech aspect of the case — but not the religious freedom aspect.
In other words, the justices will decide whether enforcement of Colorado’s public accommodation law that prohibits discrimination on the basis of sexual orientation violates the First Amendment’s free speech clause.
Smith and her lawyers argue that it does.
“This lawsuit seeks to protect the right of every American to say what they believe without fear of government retribution,” said Jake Warner, an attorney with the Alliance Defending Freedom, the conservative legal group representing Smith.
The case is similar to the 2018 Masterpiece Cakeshop case, in which a Lakewood baker was sued after refusing to make a wedding cake for a gay couple. Unlike Masterpiece, Smith’s case was filed before she started her wedding website design business.
Both sides see the case as one that could potentially resolve the constitutional question of whether creative professionals are required to commission same-sex ceremonies, regardless of their religious views on such unions.
“I’ve waited nearly six years to create and design websites to celebrate weddings without Colorado forcing me to say something I don’t believe,” Smith wrote in a National Review column earlier this year. “I’m not just defending my freedom to speak freely. Just as I don’t want to be forced to say something contrary to my core beliefs, I don’t believe anyone else should either.
If legal precedent is any indication, Smith may face an uphill battle on the nation’s highest court. The Supreme Court has ruled in favor of state anti-discrimination laws for decades.
Weiser said his office plans to build on that story.
“Regulating conduct to stop discrimination is a protected activity, and it’s really critical that we don’t stray from that line,” Weiser said. “When a business says we’re open to the public, that means they have to serve all members of the public.”
ADF, the organization representing Smith, will now have an opportunity to file a response to Weiser’s report. Both sides are expected to give oral arguments in October.
CPR’s Allison Sherry contributed to this report.