Supreme Court to hear Case of Web Designer Refusing to do Gay Wedding Sites

Lorie Smith, 38, of Littleton, Colo., may be the new face of a national debate pitting gay rights against freedom of speech in a case some have called a "free speech blockbuster."

The Colorado web site designer, who has sued her state for the right to not include gay couples in her wedding design business, will see her case argued before the Supreme Court on Monday.

Critics see it as undoing civil rights protections that bar businesses from discriminating against who can receive their services. Legal scholars see it as a test case on whether the state may compel speech through the creation of an expressive product that falls under the category of "art."

The case is a preemptive move against the Colorado's public accommodations law, which mandates that businesses cannot refuse to serve people based on race, religion or sexual orientation. Smith, who does not believe in gay marriages because of her religious convictions, says the current law forces her to either design sites for same-sex weddings - if she offers them for opposite-sex couples - or face fines and jail time.

The high court granted review of Smith's case in February and will decide whether applying public accommodations laws - crucial to civil rights enforcement - to force an artist to support a particular message violates the free speech clause of the First Amendment.

"I wanted to do artwork for things I was truly passionate about," she told Newsweek in an interview about her decision to start designing wedding sites six years ago. "I have always loved weddings and I wanted to design and create sites for weddings."

Her site – 303creative.com (named after the Denver area code) – looks like a typical web designer's site, showcasing everything from baby showers to politics to people with disabilities.

Where it may differ from others is under the "about" pull-down where the designer explains her work. Near the end of a paragraph setting out her Christian beliefs, it reads:

"Because of my faith, however, I am selective about the messages that I create or promote – while I will serve anyone, I am always careful to avoid communicating ideas or messages, or promoting events, products, services, or organizations, that are inconsistent with my religious beliefs."

When she decided to add weddings to her repertoire in 2016, Smith knew that gay marriage had been legalized the year before thanks to the Supreme Court's Obergefell v. Hodges ruling. Smith, a member of a non-denominational evangelical church, not only believed that marriage should only be between a man and a woman, but she also wanted to stipulate on her site those were the only marriages she'd design sites for.

She was also aware of an ongoing lawsuit, Masterpiece Cakeshop v. Colorado Civil Rights Commission, involving a nearby baker, Jack Phillips, who had been sued by a gay couple for refusing to bake a cake for their wedding. The commission ruled that Phillips had broken state law by discriminating against the couple. The case made its way to the US Supreme Court, which ruled in 2018 that the commission treated Phillips with anti-religious bias, but it did not rule on whether Phillips could refuse service to homosexuals on religious or freedom of speech grounds. This was left for another case to decide.

"I was concerned if I continued with this dream and created artwork consistent with my faith, I could be punished," Smith said. She then turned to her church to get guidance on protecting her religious freedom.

After her pastor referred her to Alliance Defending Freedom, the same law firm representing Masterpiece, "I took some time to consider my options and ultimately decided to stand for my right to speak freely."

The result is 303Creative LLC v. Elenis (Aubrey Elenis heads the Colorado Civil Rights Commission). Some legal experts hope that the justices will definitively rule on freedom of speech and compelled speech - that is, whether people can be forced to articulate messages they do not personally support.

"It would be helpful if they would give us a definition of what constitutes speech," said Raymond Ku, a constitutional law scholar at Case Western Reserve University. Citing court cases involving evangelical Christians who have refused to arrange flowers, provide cakes or take photos for gay weddings, "The important question is: How do we determine when a particular artistic or creative activity expresses a message?' Is the creation of these things by definition 'speech?'

In that case, "If you are forced to convey a message, that is a First Amendment concern," he said.

Americans United for Separation of Church and State, which has filed an amicus brief opposing Smith, released a statement earlier this year saying a ruling on the matter would cause more confusion.

"By limiting the case to the free speech question, the Supreme Court could hand down a narrow ruling that leaves many questions unanswered," it said. "The court's conservative majority might conclude that the company can't be compelled to create websites that broadcast messages with which it disagrees, on the grounds that websites are a form of communication.

"But it's hard to see how that same logic would extend to a caterer, a florist or the owner of a bed-and-breakfast who refuses to serve LGBTQ people, as those activities aren't forms of communication."

Smith said she does have gay clients who've requested websites with messages that don't contradict her beliefs and that she is speaking for all artists – even those ideologically opposed to her – and their freedom to refuse commissions they find objectionable.

"Everyone should be free to choose the content of their speech," she said. "I have not been able to create and design for weddings because the state of Colorado has been clear that I must create content against who I am."

After she filed a federal lawsuit in September 2016, reaction was swift.

"I was not prepared for the backlash the world had in store for me," she said. "Within an hour of filing suit, I received death threats and threats of bodily harm." A neighbor posted Smith's home address on Facebook, compelling the designer to put her daughter's school on alert. Her husband was away and because Smith had no security system yet installed at her home, she slept on the floor that night in case someone shot at her through a window.

Threats to her life and attacks on her site by hackers have continued over the years and intensified as the date for the arguments draws near.

"It has been horrific," she said.

Smith lost at the district and circuit court levels, partly because the case was hypothetical in that Smith hadn't been sanctioned by any government body yet [although commission officials said during the district court hearing they would investigate her if a complaint was filed]. The ADF continued to appeal and the Supreme Court's decision to take the case signals the justices' willingness to tackle a long-simmering issue involving artists and others in the wedding industry who draw the line at gay unions.

"If I were a betting person, I'd bet she'd win on the free speech grounds," said Charles Russo, who teaches education and law at the University of Dayton. "There are already five justices in her corner" referring to Justices Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, Samuel Alito and Amy Coney Barrett.

"In light of what happened in Masterpiece," he added, "she was taking the bull by the horns in filing this."

As for the preemptive nature of the case, "Challenging unjust laws is a hallmark of civil rights litigation," said Kellie Fiedorek, one of the attorneys representing Smith. "Lorie and others should not have to wait until the government goes after them."

ADF's gamble that 303Creative may set new precedent may pay off, said Alan Brownstein, a retired law professor at the University of California/Davis who specializes in constitutional law.

"The fact the court took the case certainly suggests they are likely to rule in her favor," he said. "The big issue is how narrow the court's opinion is."

The court's opinion could encompass not only web designers but photographers, cake bakers, flower arrangers and all manner of people associated with the wedding industry, he said, or it could be a narrow opinion that encompasses only web designers.

Taken to an extreme, anyone could say their business activities were "expressive," meaning that "you could tear apart civil rights law," he said. "You could say: 'I won't sell food to a black person in a restaurant because I don't want to communicate the message that one should serve African Americans along with whites.' "

Brownstein said that while there is a body of law on how to rule when the government stops people from exercising freedom of speech, the rules are less clear when it comes to compelled speech.

"We have a maze of inconsistent cases that have never been put together - in doctrine - that supports that framework," he said. "That's one of the reasons this is a hard case."