Web designer’s long free speech journey nears an end
Supreme Court appears poised to uphold right not to create
Lorie Smith started her website design business after a childhood inspired by her mother’s example in starting her own wedding boutique. “I often had an opportunity to watch brides and their mothers come in and tell stories, so I learned at a very early age that I was creative and loved storytelling,” said Smith, now a 38-year-old mother. “I really enjoyed watching my mom run her business. A lot of kids did kid things when they were kids. I spent a lot of time going to work with my mom.”
A Denver-area native, Smith started 303 Creative in 2012, planning to use skills honed in the corporate world to promote causes that she believed in, like supporting children with disabilities, overseas missions, animal shelters, and veterans. She knew it would take a lot of grit and hard work. She did not count on a nearly six-year battle with the state of Colorado over her right to decline to create messages that violated her religious convictions about marriage. That battle culminated Monday morning in arguments before the Supreme Court.
During more than two hours of arguments and questioning, the court wrestled with questions about line-drawing. Was Smith’s refusal to create websites that celebrated same-sex marriages a refusal based on message—and thus protected by the First Amendment—or was it based on the status of the same-sex couple and properly protected by the public accommodations law? Was she actually engaging in speech or conduct by refusing to provide what liberal justices called a “plug-and-play website” to same-sex couples?
When she decided to include traditional weddings in her business, Smith knew she would face a hostile Colorado Civil Rights Commission and hefty fines if she didn’t also design websites for same-sex weddings. In 2013, another Colorado business owner, baker Jack Phillips, unknowingly ran afoul of the commission when he declined to create a custom cake for a same-sex couple’s wedding.
So Smith made a preemptive challenge to the state’s broad public accommodation law—the same one that snagged Jack Phillips—by filing a federal lawsuit against the state in 2016.
Like Phillips, who secured a narrow ruling from the court in 2018 based on the overt hostility to his religion shown by Colorado officials, Smith contended that if the state enforced the law over her religious convictions, it would violate the First Amendment’s guarantees of the free exercise of religion and free speech. A federal district court ultimately rejected her claim, and in July 2021, a divided three-judge panel of the 10th U.S. Circuit Court of Appeals upheld the ruling.
In his dissent, Chief Circuit Judge Timothy Tymkovitch called the majority’s opinion “staggering” in its disregard for the First Amendment. “This case represents another chapter in the growing disconnect between the Constitution’s endorsement of pluralism of belief, on the one hand, and anti-discrimination laws’ restrictions of religious-based speech in the marketplace, on the other,” he wrote. “It seems we have moved from ‘live and let live’ to ‘you can’t say that.’”
At the Supreme Court on Monday, liberal justices led the way in questioning Alliance Defending Freedom’s Kristen Waggoner, who represented Smith, clearly characterizing the case as one about denial of services based on status.
While conservative justices were generally less impassioned in their questioning, one exchange stood out. In a back-and-forth with Colorado Solicitor General Eric Olson, Justice Neil Gorsuch made clear his leanings on the matter, characterizing Colorado’s treatment of Phillips as subjecting him to a “re-education program,” a term with which Olson said he “strongly disagreed.”
David Cole, national legal director for the American Civil Liberties Union, suggested in comments to Bloomberg Law that if Smith prevailed in court, “architects could refuse to design homes for black families” and “bakeries could refuse to make custom birthday cakes for Muslim children.” Yet unlike Smith’s case, neither situation relates to a message offensive to the providers, but only to the status of the customer. A friend-of-the-court brief filed by a group of First Amendment scholars, including former Georgetown law professor Ilya Shapiro, seems to address such hypotheticals, arguing that unlike the taxi driver, restaurant owner, or hotel operator who declines services, Smith’s service is pure speech protected by the First Amendment.
Six years of being in the spotlight have not been easy for Smith. In a recent video interview, Smith told me of death threats to her family, clients being harassed, her website being hacked, and her children’s school being put on alert. Her concerns were made more poignant by the sound of her young daughter playing nearby. “Without my faith, I would not be having this conversation today,” she said.
Yet Smith, who was not raised in a Christian family, said her coming to faith was a process that began when her uncle, a father figure to her and faithful Christian, tragically passed away when she was in her mid-20s. “I was so upset that I decided to set out on this journey to disprove the existence of this good God that everybody always talked about,” she said. “Because how could a good God exist if incredible, godly men, people like my uncle, are taken so soon? So I actually started attending church for the sole purpose of equipping this arsenal of what I thought was evidence to disprove the existence of God.”
Yet exactly the opposite happened, she said. “Every week I went, it was like the Lord was just chipping off a shell of that callused heart that I had, and many, many days later I had nowhere to look but up,” she recounted with emotion. She said her faith transformed everything—the way she treated people, her views on marriage, and her work. “The things I create and design, they’re unique and one of a kind, and they must be glorifying to God,” Smith added.
Litigation at the intersection of LGBT demands and constitutional guarantees of free speech and religious liberty likely will not end with Smith’s case, but a solid win would send a clear message to lower courts about the priority of free speech. It would also affect pending cases involving New York photographer and designer Emilee Carpenter and Virginia photographer Bob Updegrove, among others. Both have cases pending before federal appeals courts with claims similar to Smith’s.
For Smith, who is open to serving those from all walks of life, it is not about who a customer is, but the message they wish her to convey. “My faith teaches me to love everyone,” she said. “That’s why I work with everyone. I just can’t promote every message requested of me. And nobody, nobody, should be forced to promote a message that violates their deeply held beliefs, whether your views on marriage are similar to mine or different.”
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