Supreme Court Agrees to Take Up Colorado Religious Liberty Case

(Decision Magazine) The U.S. Supreme Court announced Feb. 22 that it will hear 303 Creative LLC v. Elenis, a case involving a Colorado web designer who argues that creating wedding websites celebrating same-sex marriage would violate her religious beliefs.

In 2016, Lorie Smith, owner of 303 Creative, filed a pre-enforcement legal challenge to the Colorado Anti-Discrimination Act, which allowed her to challenge the law before the government enforced it against her.

The law is the same one that continues to threaten Colorado cake artist Jack Phillips of Masterpiece Cakeshop, who won a partial victory at the Supreme Court in 2018, though the Colorado law was left intact.

Smith says that the law compels her to provide services that go against her Biblical beliefs and is therefore unconstitutional. The law also prohibits her from stating her beliefs about marriage on her business website.

In July, the U.S. Court of Appeals for the 10th Circuit ruled 2-1 in favor of the Colorado Anti-Discrimination Act, stating that it “permissibly compels [Lorie Smith’s] speech.” The majority asserted that while faith may enrich society in one way, it “might also damage society in other, particularly when that faith would exclude others from unique goods or services. “

Smith’s attorney, ADF General Counsel Kristen Waggoner, called the ruling “shocking.”

“The government doesn’t have the power to silence or compel creative expression under the threat of punishment,” she said in a press release. “ … Colorado has weaponized its law to silence speech it disagrees with, to compel speech it approves of, and to punish anyone who dares to dissent. Colorado’s law—and others like it—are a clear and present danger to every American’s constitutionally protected freedoms and the very existence of a diverse and free nation.”

Supreme Court justices agreed to take up Smith’s claim under the free speech clause of the First Amendment but declined to review two other questions that Smith raised in her petition for review: whether requiring Smith to create custom websites for same-sex couples violates the First Amendment’s free exercise clause, and whether the Supreme Court should overrule its 1990 decision in Employment Division v. Smith, which held that government actions usually do not violate the free exercise clause as long as they are neutral and apply to everyone. 

The court is expected to hear oral arguments this fall.

With a conservative majority on the court, religious liberty advocates are optimistic that the ruling will favor Smith and clarify whether or not the government may compel speech. 

In the high court’s 2018 decision for Phillips, the justices ruled the state erred in showing hostility toward Phillips’ Christian beliefs, but the court failed to address whether the demands of the Colorado law violated Phillips’ free speech and religious liberty.