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The U.S. Court of Appeals for the 10th Circuit on Monday said a Christian web designer who lives in Colorado must create websites that she says violate her religious beliefs.
In a 2-1 decision, the appeals court said 303 Creative founder Lorie Smith must design graphics and websites that "celebrate same-sex marriages" because Colorado's Anti-Discrimination Act "permissibly compels" her to do so if she also is going to create websites that celebrate heterosexual marriages.
"The government should never force creative professionals to promote a message or cause with which they disagree. That is quintessential free speech and artistic freedom," said John Bursch, an attorney with the Alliance Defending Freedom who is representing Smith in her lawsuit against the Colorado law.
Colorado's Anti-Discrimination Act prohibits any business that offers public services from denying an individual or group goods or services on the basis of sexual orientation or any other of several protected classes of identity covered by the law. It is the same law used by the Colorado Civil Rights Division to fine Masterpiece Cake Shop owner Jack Phillips, who has refused to bake cakes celebrating same-sex marriage or a transgender person's sex-reassignment surgery.
Smith filed a pre-enforcement challenge to CADA because she believes that being required to create a website for a same-sex wedding would violate her religious beliefs about marriage. 303 Creative has not yet offered wedding-related services but Smith intends to do so in the future.
Writing for the majority, Judge Mary Beck Briscoe said that Colorado has a "compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace." She ruled that while CADA's protections are "not narrowly tailored to preventing dignitary harms," the law requires Colorado to ensure "equal access to publicly available goods and services."
The fact that same-sex couples can obtain web design services from other businesses, not just 303 Creative, does not mean that homosexuals have "equal access," according to Briscoe.
Permitting Smith to honor her religious convictions by refusing to celebrate same-sex marriages "would necessarily relegate LGBT consumers to an inferior market," Briscoe wrote, "because Appellants' unique services are, by definition, unavailable elsewhere."
The judge's reasoning is that LGBT customers would be denied equal access to Smith's specific services, which constitutes a violation of Colorado's discrimination protections.
"To be sure, LGBT consumers may be able to obtain wedding-website design services from other businesses; yet, LGBT consumers will never be able to obtain wedding-related services of the same quality and nature as those that Appellants offer," Briscoe wrote. "Thus, there are no less intrusive means of providing equal access to those types of services."
Briscoe asserted that Smith has something "similar to a monopoly" over her own creative talents.
"The product at issue is not merely 'custom-made wedding websites,' but rather 'custom-made wedding websites of the same quality and nature as those made by Appellants.' In that market, only Appellants exist," she argued.
Dissenting, 10th Circuit Chief Judge Timothy Tymkovich said the Constitution protects Smith's beliefs and warned that Briscoe's logic would vastly expand the government's power over speech.
"This is, in a word, unprecedented," Tymkovich wrote. "Taken to its logical end, the government could regulate the messages communicated by all artists, forcing them to promote messages approved by the government in the name of 'ensuring access to the commercial marketplace.'"
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