DigitalCommons@NYLS

Other Publications Faculty Scholarship

8-2021

10th Circuit Panel Rejects Web Designer’s Challenge to 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, , 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.” Here the court relied court found to be “dissimilar” from this tailored as necessary to achieve that on a 1973 Supreme Court opinion case, in which Smith was affirmatively interest. that rejected a newspaper’s First challenging the constitutionality of the As part of its analysis, the court Amendment defense against the statute in the absence of any prosecution rejected Smith’s argument that she was demand by the Pittsburgh Commission ongoing against her. not proposing to discriminate based on on Human Relations that it not publish The court also rejected ADF’s the sexual orientation of her customers, “help wanted” classified advertising arguments that the Communication finding that refusing to provide website specifying “male” or “female” Clause was overbroad and vague, finding design services for a same-sex wedding applicants wanted, where a statutory ban that its “application to protected speech necessarily discriminates based on on sex discrimination in employment is not substantial relative to the scope of sexual orientation. made such advertising unlawful, even the law’s plainly legitimate applications,” In this case, the arguments that ADF though it was clearly speech. See quoting from Virginia v. Hicks, 539 advanced to convince the court that this Pittsburgh Press Co. v. Pittsburgh U.S. 113 (2003), and that there was no is a compelled speech case came back Commission on Human Relations, 413 vagueness issue in this case, because the to defeat their claim in the end. While U.S. 376 (1973). The court found that Communication Clause clearly applied it prompted the court to engage in the statement Smith proposed to put on to the statement proposed by Smith strict scrutiny, the majority of the panel her website “expresses an intent to deny for her website that she would refuse ultimately decided that this was the rare service based on sexual orientation – an to provide her services for same-sex freedom of speech case that survives strict activity that the Accommodation Clause weddings.

August 2021 LGBT Law Notes 5 “We agree with the Dissent that ‘the gay people from discrimination, While the Court’s recent denial of protection of minority viewpoints is which the Supreme Court declared review in the Arlene’s Flowers case not only essential to protecting speech unconstitutional as a violation of the from the Washington Supreme Court and self-governance, but also a good in Romer v. suggests a lack of appetite to take up in and of itself,’” wrote Briscoe. “Yet, Evans in 1996. another same-sex wedding case so we must also consider the grave harms What lies ahead for this case? soon, the emboldened conservative caused when public accommodations Because ADF represents 303 majority on the Court might vote to discriminate on the basis of race, Creative and Smith, there are no take another crack at the issue as a religion, sex, or sexual orientation. financial constraints on requesting en vehicle for overruling Smith and taking Combatting such discrimination is, like banc review or attempting to get the a bite out of the impact of Obergefell v. individual autonomy, ‘essential’ to our case up to the Supreme Court. ADF is Hodges, the Court’s marriage equality democratic ideals. We agree with the an issues organization with an agenda, case, in which Justice Samuel Alito, in Dissent that a diversity of faiths and and it routinely seeks further review dissent, predicted the kinds of clashes religious exercise, including Appellants’, in such cases. Indeed, it immediately represented by cases such as this one. ■ ‘enriches’ our society. Yet, a faith that announced that it would seek review. enriches society in one way might also Given the composition of the full 10th Arthur S. Leonard is the Robert F. damage society in others, particularly Circuit, we suspect that ADF may Wagner Prof. of Labor and Employment when that faith would exclude others attempt to petition the Supreme Court Law at New York Law School. from unique goods or services. In directly rather than seek review, short, Appellants’ Free Speech and because this is one of the few circuits Free Exercise rights are, of course, that was not significantly “rebalanced” compelling. But so too is Colorado’s toward a more conservative stance by interest in protecting its citizens from ’s appointments. the harms of discrimination. And Twelve seats are authorized for the Colorado cannot defend that interest 10th Circuit, of which two stood vacant while also excepting Appellants from on July 26, most recently when Judge CADA.” Briscoe elected senior status earlier Chief Judge Timothy Tymkovich’s this year. President Joseph Biden dissent starts with a quote from George has nominated Veronica Rossman to Orwell (“If liberty means anything fill one of these vacancies, and her at all, it means the right to tell people hearing before the Senate Judiciary what they do not want to hear”) and Committee has taken place. Upon her goes downhill from there, finding that likely confirmation, the Circuit will the First Amendment protects Lorie have six Democratic appointees and five Smith from having to compromise her Republican appointees – two by Trump beliefs in order to operate her business. and three by George W. Bush. Judge He argues that “the majority takes the Briscoe and the other senior judge on remarkable – and novel – stance that the panel in this case, Michael Murphy, the government may force Ms. Smith would be entitled under 10th Circuit to produce messages that violate her rules to participate in an en banc review, conscience. In doing so, the majority tipping the balance to eight Democratic concludes not only that Colorado has appointees. In what are widely seen as a compelling interest in forcing Ms. “culture war” cases, the political party Smith to speak a government-approved of an appointing president frequently message against her religious beliefs, correlates with how the judges vote. but also that its public-accommodation However, if this case gets to the law is the least restrictive means of Supreme Court, the chances of it accomplishing this goal. No case has being reversed seem greater, given the ever gone so far.” He asserted: “The eagerness of several members of that Constitution is a shield against CADA’s court to overturn Employment Division discriminatory treatment of Ms. Smith’s v. Smith in their concurring opinions sincerely held religious beliefs.” in Fulton v. City of Philadelphia. One might remember Judge Furthermore, the general disposition Tymkovich’s former role as Attorney of the Court’s conservative wing is General of Colorado defending to expand constitutional protection Amendment 2, the initiative measure for Free Exercise of Religion and for that forbade the state from protecting free speech for religious practitioners.

6 LGBT Law Notes August 2021