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Supreme Court will hear another clash pitting religious rights against laws protecting LGBTQ people from discrimination

The U.S. Supreme Court in Washington. (Stefani Reynolds/Bloomberg News)

The Supreme Court on Tuesday said it will decide whether a Colorado designer can tell same-sex couples she will not create a website for their weddings, reviving the issue of where to draw the line between someone’s religious beliefs and protections against discrimination for LGBTQ people.

At issue is the same Colorado anti-discrimination law that came before the court in 2018, when the justices ruled for baker Jack Phillips, who refused to create a wedding cake for a gay couple. The justices decided the Colorado Civil Rights Commission displayed bias against religious views in ruling against Phillips. But they did not resolve the larger question of when businesses may invoke religious objections to refuse service.

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The court restricted the new case to whether applying Colorado’s law “to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”

The court will hear the case, 303 Creative LLC v. Elenis, in the term that begins in October.

According to her filings in the Supreme Court, Lorie Smith is an artist and website designer who plans to go into the wedding website business. She wants to create only websites “that promote her understanding of marriage as between one man and one woman, and she would like to post an online statement explaining she can only speak messages that are consistent with her religious convictions.”

But Colorado’s Anti-Discrimination Act (CADA) does not allow businesses to withhold their services from LGBTQ customers. It and 20 other states specifically forbid discrimination based on sexual orientation.

“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,” said Kristen Waggoner, general counsel of Alliance Defending Freedom, which also represented Phillips. “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.”

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A lower court ruled for the state, and a panel of the U.S. Court of Appeals for the 10th Circuit agreed in a 2-to-1 vote. The panel agreed Colorado was restricting Smith’s speech but said it could be justified.

“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 Mary Beck Briscoe wrote.

Dissenting Judge Timothy Tymkovich cited George Orwell and said the decision imposes government-approved messages on individuals, subverting “our core understandings of the First Amendment.”

Colorado had asked the Supreme Court not to take up the case. It said Smith was looking for a fight, because she has never offered her services or been approached by a same-sex couple, nor is there evidence that Colorado is looking to punish her for her views.

“Prohibiting companies from displaying what would amount to ‘Straight Couples Only’ messages is permissible because it restricts speech that proposes illegal activity and is therefore unprotected by the First Amendment,” Colorado Attorney General Phillip J. Weiser (D) said in a filing to the Supreme Court.

Besides, the state said, no one looking at a website she created for an engaged gay couple would think it reflected her views on same-sex marriage.

“Unlike a newsletter, parade, or editorial page that communicate the writers’ or organizers’ own expression, the company’s services help a couple announce the couple’s wedding and tell the couple’s story to encourage friends and family to join the couple’s celebration,” the state said. “No one viewing one of the company’s proposed wedding websites would confuse the couple’s ‘unique love story’ as that of the company’s.”

After the court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission failed to settle the issue, lawsuits from wedding vendors such as calligraphers, video creators and florists have been filed across the country. They contend their creative expressions are protected from government regulation.

The Supreme Court last summer declined to get involved in a long-running case from the state of Washington in which a Christian florist said her religious beliefs did not allow her to provide flowers for the wedding of a gay friend, who was a regular customer.