Website designer loses religious freedom appeal

A divided federal appeals court panel on Monday ruled that a Colorado law requires a website designer to create sites for same-sex weddings in spite of religious objections.

In a 2-1 ruling, 10th U.S. Circuit Judge Mary Beck Briscoe, an appointee of President Bill Clinton, concluded that the Colorado Anti-Discrimination Act infringed on Lorie Smith’s First Amendment rights but passed constitutional muster because it was narrowly tailored to meet a compelling state interest.

Briscoe, who was joined by Circuit Judge Michael Murphy, also a Clinton appointee, wrote that “protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace” justified overriding Smith’s free speech and religious liberty.

In a lengthy dissent, 10th Circuit Chief Judge Timothy Tymkovich, appointed by President George W. Bush, criticized the majority for forcing a “Hobson’s choice” on those with religious convictions against same-sex marriage. “Colorado is rightfully interested in protecting certain classes of persons from arbitrary and discriminatory treatment,” Tymkovich wrote. “But what Colorado cannot do is turn the tables on Ms. Smith and single out her speech and religious beliefs for discriminatory treatment.”

Colorado used its broad Anti-Discrimination Act to pursue its case against Masterpiece Cakeshop baker Jack Phillips. A June 2018 ruling by the Supreme Court found that the Colorado Civil Rights Commission exhibited hostility toward Phillips’ convictions about same-sex marriage. The Christian baker continues to fight a private lawsuit over his refusal to design a cake for a gender transition celebration. Whereas Phillips was defending himself from complaints made by gay and transgender customers, Smith sued the state preemptively to keep it from enforcing the law against her in the event she faced a complaint.

Monday’s ruling contradicts two other court decisions pitting gay activists against those with Biblical convictions about marriage. In October 2019, the Arizona Supreme Court ruled the city of Phoenix could not force Brush & Nib artists Joanna Duka and Breanna Koski to design and create custom wedding invitations that conflict with their Christian beliefs.

Later that year, the 8th U.S. Circuit Court of Appeals temporarily barred enforcement of a Minnesota law requiring Telescope Media’s Carl and Angel Larsen to make and produce videos of same-sex weddings. Resolution of the conflict among courts will likely take some time. The U.S. Supreme Court declined to hear an appeal of a similar case by Washington florist Barronelle Stutzman earlier this month.

“How many more creative professionals will have to suffer before they receive recognition of their constitutionally protected freedoms—the rights they have always had in this country?” said Alliance Defending Freedom’s John Bursch, adding that Smith would appeal the ruling.