Web Designer to Appeal 10th Circuit's Ruling Forcing Her to Create Objectionable Websites

A Colorado web designer is appealing a ruling made Monday by the 10th Circuit Court that rejected her challenge of Colorado's anti-discrimination law and requires her to create wedding websites for same-sex couples despite it violating her religious beliefs.

The U.S. Court of Appeals for the 10th Circuit ruled 2 – 1 the state can force Lorie Smith of studio 303 Creative to design and publish websites promoting messages that go against her personal religious beliefs. The law at issue also prevents Smith from explaining on her company's website what sites she can create that are consistent with her beliefs.

By making the decision, the three-judge panel overturned a lower court ruling throwing out Smith's previous legal challenge and noting that Colorado had a compelling interest in protecting the "dignity interests" of members of marginalized groups through its law.

The non-profit legal organization Alliance Defending Freedom, which represents Smith, has argued and continues to argue the law forces Smith to violate her First Amendment rights of freedom of religion and speech.

Dave Mullins and Charlie Craig
The U.S. Court of Appeals for the 10th Circuit ruled 2 – 1 Colorado can force Lorie Smith of studio 303 Creative to design and publish websites promoting messages that go against her religious beliefs. Dave Mullins and Charlie Craig wait to speak to journalists after the U.S. Supreme Court hear the case Masterpiece Cakeshop v. Colorado Civil Rights Commission December 5, 2017 in Washington, D.C. Chip Somodevilla/Getty

Kristen Waggoner, general counsel of ADF and lead counsel on the case representing Smith, described the court's decision as not only unprecedented but emphasized the importance of free speech in this particular case. She said her client is fighting not only on behalf of herself but to "assure that all Americans can peacefully co-exist."

"As the dissent rightly recognizes, it stunningly openly omits they are going to compel the written word and the state has the power to force artists to express messages that violate their core convictions," Waggoner told Newsweek.

"That transcends the issue of same sex marriage and it ends any concept of maintaining a pluralist nation that is truly tolerant of good faith differences of opinion."

"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," ADF's senior counsel John Bursch, also said in a statement.

The anti-discrimination law is the same one in question in an earlier case that involved baker Jack Phillips. In 2018, the U.S. Supreme Court decided the Colorado Civil Rights Commission had acted with anti-religious bias against Phillips after he refused to bake a cake for two men who were to be married. But at that time, there was no ruling as to the larger issue of whether a business can invoke religious objections to refuse service to LGBTQ people. Phillips was also represented by Alliance Defending Freedom.

Lambda Legal, a group that fights for the civil rights of LGBTQ people, submitted a brief earlier supporting the Colorado law.

"This really isn't about cake or websites or flowers," Lambda Legal senior counsel Jennifer C. Pizer said in a statement. "It's about protecting LGBTQ people and their families from being subjected to slammed doors, service refusals and public humiliation in countless places—from fertility clinics to funeral homes and everywhere in between."

Colorado Solicitor General Eric Olson questioned whether Smith should even be allowed to challenge the law since she had not started offering wedding websites yet. But if she did, he said her argument would mean she would be refusing to create a website for a hypothetical same-sex couple named Alex and Taylor but agree to make the same one for an opposite-sex couple with the same names. Olson deemed that discrimination under the Colorado Anti-Discrimination Act, which prohibits discrimination on the basis of sexual orientation.

Judge Mary Beck Briscoe wrote in Monday's majority opinion that "we must also consider the grave harms caused when public accommodations discriminate on the basis of race, religion, sex, or sexual orientation. Combatting such discrimination is, like individual autonomy, 'essential' to our democratic ideals."

This latest ruling is another turn in a series of court rulings nationwide addressing whether businesses denying services to LGBTQ people amounts to bias or freedom of speech.

Waggoner said the ruling, which she rendered "incorrect," would apply the same to an LGBTQ designer as it does to Smith and to anyone who doesn't agree with a certain message.

"We sink or swim together when it comes to the First Amendment," she said.

Correction (7/29/2021, 8:07 p.m.): This article originally used the wrong first name for Judge Mary Beck Briscoe. Newsweek regrets the error.