10Th Circuit Panel Rejects Web Designer's Challenge to Colorado

DigitalCommons@NYLS Other Publications Faculty Scholarship 8-2021 10th Circuit Panel Rejects Web Designer’s Challenge to Colorado Anti-Discrimination Law Arthur S. Leonard Follow this and additional works at: https://digitalcommons.nyls.edu/fac_other_pubs Benson from the Becket Fund for 10th Circuit Panel Rejects Web Religious Liberty, James Geoly from Archdiocese of Chicago Office of Legal Designer’s Challenge to Colorado Services, and Alexander Marks from the Chicago-based law firm Burke, Anti-Discrimination Law Warren, Mackay & Serritella. Amici curiae that argued for By Arthur S. Leonard extending the ministerial exception included: the State of Indiana A panel of the U.S. Court of Appeals The court found that these were represented by the Office of the for the 10th Circuit issued a decision in appropriate defendants because the Attorney General; Robert F. Cochran Jr. 303 Creative LLC v. Elenis, 2021 WL method of enforcement is for rejected from Pepperdine Caruso School of Law 3157635 (July 26), rejecting a website customers to file charges with the Civil represented by attorneys at Jones Day; designer’s First Amendment challenge Rights Division, followed by ALJ the Lutheran Church-Missouri Synod to the Colorado Anti-Discrimination hearings and decision subject to review represented by First Liberty Institute Act’s prohibition of sexual by the Commission, followed by judicial in Plano, Texas; the Serbian Orthodox orientation discrimination by public enforcement actions brought by the Diocese of New Gracanica-Midwestern accommodations and to a provision Attorney General’s office. America represented by the Center for prohibiting public accommodations Smith’s Complaint alleges that Law & Religious Freedom; the Ethics from communicating that they will requiring her to design websites And Religious Liberty Commission reject patronage based on sexual for same-sex weddings violates her Of The Southern Baptist Convention orientation. The panel consisted of two right to free exercise of religion, and represented by Williams Connolly; circuit judges appointed by President that the provision prohibiting public the Indiana Catholic Conference, Bill Clinton, Mary Beck Briscoe and accommodations from publishing any Wisconsin Catholic Conference, and the Michael Murphy, and the circuit’s communication that indicates a person’s Cardinal Newman Society, represented chief judge, Timothy Tymkovich, who patronage will be refused because of by Southbank Legal: Ladue Curran dissented, appointed by President their sexual orientation violates her & Kuehn; and, Alliance Defending George W. Bush. freedom of speech. She also claimed that Freedom. 303 Creative LLC is Lorie Smith’s the law is unconstitutionally vague and Amici curiae that argued against graphic and website design company. overbroad. And, she argued, refusing to a categorical bar to discrimination Smith claims that she is “willing to design websites for same-sex weddings claims included the Equal Employment work with all people regardless of is not sexual orientation discrimination Opportunity Commission, Catholics sexual orientation,” but she doesn’t want because she would refuse such business for Choice, represented by Lambda to be involved in designing anything regardless of the sexual orientation of the Legal, and Religious Entities, Civil- for a same-sex wedding, due to her customer seeking her design services. Rights Organizations, Unions, and Christian religious beliefs. According (For example, if a heterosexual parent Professional Associations, represented to the opinion by Judge Briscoe, Smith’s of a gay person approached Smith to by Americans United for Separation of company has not done any wedding design a website for the marriage of her Church and State. ■ design business yet, but she claims that gay child to another person of the same- she plans to do so, so long as she isn’t sex, she would reject the business, even Joseph Hayes Rochman is a law legally required to do work for same- though the customer is not gay, because student at New York Law School (class sex weddings. She would like to be her religious beliefs reject celebrating a of 2022). able to put a notice on her website that same-sex marriage, which is what she she does not design websites for same- contends is communicated by a wedding sex weddings because of her religious website.) beliefs. Senior District Judge Marcia S. Smith is represented by Alliance Krieger found that Smith and her Defending Freedom (ADF), an business lacked standing to challenge Arizona-based law firm that specializes the Accommodation Clause of that in religious freedom cases and has Colorado Act, referred to throughout initiated many legal challenges to anti- the opinion as CADA, since she discrimination laws. They filed suit had not begun designing wedding against the members of the Colorado websites for customers, but that they Civil Rights Commission and the state’s did have standing to challenge the Attorney General in the U.S. District Communication provision. Judge Court in Denver, seeking an injunction Krieger then granted the state’s motion to block enforcement of the CADA for summary judgment on the merits of against Smith and 303 Creative. the 1st Amendment claim, and Smith 4 LGBT Law Notes August 2021 appealed to the 10th Circuit. Smith scrutiny. ADF emphasized the artistic forbids and that the First Amendment argued on appeal that she had standing creativity that renders Smith’s services does not protect.” to raise her claims against the potential “unique” in arguing that requiring Smith Turning to ADF’s religious freedom application of both the Accommodations to design a same-sex marriage website arguments, the court found that CADA Clause and the Communication Clause. was compelling her to speak a message is a neutral law of general applicability, Throughout her opinion, Judge Briscoe that she did not want to speak. But after and thus under the Supreme Court’s refers to Smith and her business as the court concluded that Colorado’s decision in Employment Division v. “Appellants,” even though she is the sole decision to include sexual orientation in Smith, 494 U.S. 872 (1990), it easily proprietor and employee of her business. its Accommodations provision signaled survives judicial review. ADF argued Writing for the panel majority, Judge a compelling state interest to protect that the Supreme Court’s Masterpiece Briscoe found that the Appellants people from discrimination in obtaining Cakeshop decision from 2018 should have standing to challenge both the goods and services due to their sexual dictate a ruling in favor of Lorie Smith Accommodation and Communication orientation, the court’s focus shifted to in this case, based on ADF’s contention parts of CADA, but on the merits she whether the provision was “narrowly that the Colorado Civil Rights ruled that Judge Krieger was correct to tailored” to achieve that purpose. Commission is not “neutral” regarding grant the state’s motion for summary Is it possible that customers who religion. Rejecting this argument, Judge judgment. desired the “unique” website design Briscoe wrote, “Appellants provide The court agreed with Lorie Smith services offered by Smith could obtain no evidence that Colorado will ignore that requiring her to design websites basically the same thing from any the Court’s instruction in Masterpiece for same-sex marriages could be alternative vendor? ADF did such a Cakeshop, and thus provide no evidence considered “compelled speech,” good job at distinguishing Smith’s that Colorado will enforce CADA in a because the Accommodation Clause unique talents that it persuaded the non-neutral fashion.” “compels Appellants to create speech court that giving Smith an exemption The court reported that at a “public that celebrates same-sex marriages,” from the statute would defeat the state’s meeting held a few days after the Court’s in that it would “force” them to “create compelling interest, because these are ruling in Masterpiece Cakeshop,” the websites – and thus, speech – that they not fungible services. In the court’s view, Director of the Commission (and lead would otherwise refuse.” And, she somebody who provides a uniquely defendant in this case), Aubrey Elenis, wrote, “because the Accommodation personal service has a virtual monopoly stated: “So in these cases going forward, Clause compels speech in this case, it over provision of that service, so making Commissioners and ALJs and others, also works as a content-based restriction. an exception to the non-discrimination including the Staff at the Division, have Appellants cannot create websites requirement effectively denies the to be careful how these issues are framed celebrating opposite-sex marriages, service to the potential customer. so that it’s clear that full consideration unless they also agree to serve customers As to the Communication Clause, is given to sincerely – what is termed who request websites celebrating same- the court ruled that it does not violate as sincerely-held religious objections.” sex marriages.” As a result, the court Free Speech rights, agreeing with Furthermore, Masterpiece was a case in must subject the provision to strict District Judge Krieger that “Colorado which the Division was prosecuting the scrutiny, under which it is deemed may prohibit speech that promotes baker for refusing to make a wedding unconstitutional unless it serves a unlawful activity, including unlawful cake for a same-sex couple, which the compelling state interest and is narrowly discrimination.”

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