The U.S. Court of Appeals for the 10th Circuit's panel of three judges has ruled that Lorie Smith and her web design company 303 Creative, must design website for same-sex couples even if it violates her Christian beliefs. The decision was won by a 2 to 1 vote on Monday, during which the three-judge panel said that the Smith and her company must design websites for same-sex couples if they do so for traditional weddings.
According to the Christian Post, Smith opposed the Colorado Anti-Discrimination Act because it would force her to provide services that do not align with her religious beliefs, which she believes is unconstitutional. The Christian web designer then filed a pre-enforcement legal challenge in 2016 against the act.
Smith claimed she planned to start building websites for weddings, but would only do so for heterosexual unions because of her Christian faith. But in 2017, a district court ruled that Smith cannot challenge the Colorado Anti-Discrimination Act and upheld the decision in a subsequent ruling.
The majority opinion was authored by Circuit Judge Mary Beck Briscoe, who was appointed by former President Bill Clinton. The appeals court acknowledged that Smith's web design company would be persecuted under the Colorado Anti-Discrimination Act in the event that they declined services to same-sex couples while catering to heterosexual couples. Judge Briscoe ruled that the state's anti-discriminatory act "is a neutral law of general applicability, and that it is not unconstitutionally vague or overbroad."
"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," Judge Briscoe wrote in the ruling. In addition, the majority opinion said that the state "may prohibit speech that promotes unlawful activity, including unlawful discrimination" if 303 Creative puts a statement on their website to announce its refusal to design websites for same-sex couples.
The court ruling also decided that the First Amendment does not protect the Christian web designer's proposed announcement on 303 Creative's website denying services to same-sex couples and that while the proposed statement may not violate the Accommodation Clause, it "expresses an intent to deny service based on sexual orientation - an activity that the Accommodation Clause forbids and that the First Amendment does not protect."
However, Tenth Circuit Chief Judge Timothy M. Tymkovich, who was appointed by former President George W. Bush wrote his dissent to the decision, writing that Smith is protected by the Constitution "from the government telling her what to say or do." He added while the state is right in wanting to protect LGBT individuals, it must also not "single out her speech and religious beliefs for discriminatory treatment under the aegis of anti-discrimination laws."
Alliance Defending Freedom, which represents Smith, reported that the "gag" provision of the Colorado Anti-Discrimination Act prevents designers and artists from expressing their religious views in the marketplace, which indicate that a person is "unwelcome, objectionable, unacceptable, or undesirable" because of their sexual orientation, something that is illegal under the Equality Act.
The advent of the Equality Act has spurned the religious beliefs of many small business owners who have been taken to court over their refusal to provide services to same-sex couples, including the widely publicized case of baker Jack Phillips of Colorado, florist Barronelle Stutzman of Washington, and the case of California Catholic hospitals versus the University of California.