New lawsuit targets Colorado’s LGBT nondiscrimination protections

The Alliance Defending Freedom is trying to overturn the country’s LGBT protections one by one — and so far failing.

CREDIT: 303creative.com
CREDIT: 303creative.com

A day after a judge in Arizona ruled against the Alliance Defending Freedom’s suit challenging Phoenix’s LGBT nondiscrimination protections, the conservative legal organization filed a new similar challenge in Colorado. That state’s LGBT protections are unconstitutional, they argue, because they infringe on a web designer’s freedoms of speech and religion.

Lorie Smith runs 303 Creative LLC, a graphic and web design company based near Denver. She wants to be able to design webpages for clients’ weddings, but she wants to make very clear that she won’t design wedding sites for same-sex couples — and she doesn’t want to be in violation of the law for that refusal. The Colorado Anti-Discrimination Act (CADA) makes it illegal to refuse service on the basis of sexual orientation or to advertise such discriminatory intent.

According to the complaint, “Lorie believes that God is calling her to promote and celebrate His design for marriage by designing and creating custom wedding websites for weddings between one man and one woman only.” She finds any contrary messages to be “highly objectionable,” because same-sex marriage “violates God’s will” and “harms society and children because marriage between one man and one woman is a fundamental building block of society and the ideal arrangement for the rearing of children.”

Smith hopes to avoid fines or any re-education training “designed to indoctrinate persons charged with discrimination,” a reference to the sensitivity training that baker Jack Phillips was ordered to attend after refusing to sell a cake to a same-sex couple. If she had to create a website for a same-sex wedding, it would “undercut the effectiveness of Plaintiffs’ desired expression promoting marriage as a union between one man and one woman, harm Plaintiffs’ reputation among their Christian clients and friends, and adversely impact Plaintiffs’ ability to share additional biblical truths with others.” In fact, Smith can’t even “associate with clients or events” related to same-sex marriage or she won’t be able to “authentically or convincingly promote [her] beliefs about religion and marriage.”

The lawsuit is rife with pitfalls that undermine her argument.

A conflation of messages

The suit addresses two different provisions of the law, the part that actually prohibits discrimination and the part that prohibits advertising an intention to discriminate. Because ADF is arguing that Smith’s free speech has been infringed, it actually dedicates more time and energy to the second point than the first. One of its claims relies on a clear conflation.

According to the suit, advertising a belief opposing same-sex marriage and advertising an intention to discriminate against same-sex couples are the same thing. “Such barred communications include statements that a business and its owners believe that God designed marriage exclusively to be a union between one man and one woman and that any other conceptions of marriage are contrary to God’s design.” Other courts have repeatedly rejected this conflation when ADF has used it to defend their other clients accused of anti-gay discrimination.

CADA states that places of public accommodations may not directly or indirectly publish any notice that “the full and equal enjoyment” of goods and services “will be refused, withheld from, or denied” because of a person’s identity. Smith could publicize her beliefs about God’s design for marriage without directly telling same-sex couples that she won’t serve them. Such statements might dissuade customers nevertheless, but they wouldn’t violate the law.

In fact, that was exactly what the Arizona judge said in response to ADF’s lawsuit on behalf of the Phoenix calligraphers. Defending similar language in Phoenix’s nondiscrimination law, Judge Karen Mullins explained, “Plaintiffs confuse conduct with expressive speech. The ordinance only precludes Plaintiffs from refusing to sell products or provide services to same-sex couples and from stating that same-sex couples are unwelcome as customers.”

According to the lawsuit, Smith (or ADF) has already penned a statement that she wants to publish on her website expressing her intention to discriminate. It does not walk the line:

These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs, so I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage — the very story He is calling me to promote.

As it is, her website already states, “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.” For now, she is not creating any websites for weddings.

Whose speech is it?

Another of the complaint’s claims is that when Smith designs a website for a client, the content is her speech. By creating wedding websites, she will use the couples’ stories to express her own message “celebrating and promoting marriage as a union of one man and one woman.” She will likewise evangelize to her clients by “sharing biblical truths” about their commitment. Thus, “the messages communicated on the wedding websites will be Plaintiffs’ speech.”

In other words, Smith doesn’t actually wants to design wedding websites for couples; she wants couples to pay her to use their wedding as a chance to express her own views. The two are not the same thing.

Mullins addressed the question of whose speech is communicated by creative goods in regards to the wedding invitations the Phoenix calligraphers don’t want to produce:

Any conceivable endorsement of same-sex marriage that might be conveyed would be conveyed by the act of the marriage itself, and not by the creator or printer of the physical invitation itself. It is absurd to think that the fabricator of a wedding invitation for a same-sex couple has endorsed same-sex marriage merely by creating or printing that invitation. Moreover, there is nothing about the creative process itself, such as a flower or vine or the choice of a particular font or color, that conveys any pledge, endorsement, celebration, or other substantive mandated message by Plaintiffs in regard to same-sex marriage.

The websites would only contain Smith’s speech if she actually includes her speech. Otherwise, they are a conduit for the couples to tell their wedding stories.

Even if the only product Smith would sell is wedding websites rife with her own personal beliefs about marriage, she still has an obligation to offer sale of that product to all customers. Same-sex couples likely wouldn’t want to buy a website condemning their union, but if that’s the product for sale, Colorado law requires it be sold equally to all customers regardless of sexual orientation. If she sells even one wedding website that doesn’t expressly communicate her beliefs in her voices, then she also has to sell that to all customers regardless of sexual orientation.

A double standard for cakes

One other claim ADF makes, which is unique to the Colorado challenge, is that there is a double standard for how the anti-discrimination law is enforced. When Jack Phillips, another of ADF’s clients, refused a wedding cake to a same-sex couples, he was found in violation of the law, but when Marjorie Silva refused to bake a Bible cake with the message, “Homosexuality is a detestable sin,” she was not found in violation.

Phillips, owner of Masterpiece Bakery, has lost on several appeals, and earlier this year, the Colorado Supreme Court decided not to hear his case. To avoid continued violation of the law, he stopped selling wedding cakes entirely rather than agreeing to sell them to same-sex couples.

Silva, owner of Azucar Bakery, was targeted by creationist educator William Jack, who hoped that her refusal would get her in trouble and reveal the hypocrisy of the law. In addition to asking for Biblical verses, he wanted the cake to include a portrayal of two grooms holding hands in front of a cross with a red “X” over them. Silva refused and Jack filed a complaint stating that she had discriminated against him because of his beliefs.

The Colorado Civil Rights Division, however, sided with Silva, explaining that she did not discriminate against Jack because of his “creed” (as Colorado law defines it), but because his request included “derogatory language and imagery.” Employing that standard consistently across all protected groups, as Silva does, does not constitute religious discrimination. If she sold anti-gay cakes to other customers but not to Jack, then he might have had a case.

Essentially, her case actually was about the message of the product, as opposed to just whether she sold the same product to all customers. Phillips was in violation because he wouldn’t sell the same product, a wedding cake, to same-sex couples as he does to different-sex couples.

But ADF doesn’t see that distinction. Smith’s complaint attacks the Division for using “unbridled discretion” to “intentionally discriminate” by determining that “objectionable speech” is because of a classification in one case but because of the “objectionable nature” of the speech itself in another. That’s because ADF believes that if Smith has to work with a same-sex couple, it would be just as “objectionable” to her as Jack’s message was to Silva.

They explicitly argue that there’s a double standard in this regard. “Many other Colorado expressive businesses and their owners promote their views in favor of same-sex marriage,” the complaint reads. “Plaintiffs simply wish to enjoy those same freedoms.” This ignores that the two beliefs are not opposite sides of the same coin; one is related to discrimination and the other isn’t.

Requiring Smith to serve same-sex couples, the complaint argues, “denies her dignity as an equal citizen, stigmatizes her as a social pariah, disallows her from pursuing her chosen profession, and punishes her in violation of the Fourteenth Amendment.”

On at least one of those points, ADF is right. Since the suit was filed, Smith has experienced a backlash. In a statement on her website, she explains, “I am very sorry that some people are so intolerant of my beliefs — beliefs shared by many Jews, Muslims, Christians, and nonreligious people in this country and the throughout the world — as to harass you. As you know, I try to treat everyone with respect and I wish they would do the same. Please contact me if you have concerns.” Nothing in Colorado’s law prevents customers from choosing not to patronize a business owner they find repugnant.

Smith’s suit is actually the third of ADF’s new brand of “pre-enforcement challenges,” complaints challenging LGBT nondiscrimination ordinances before they’ve been violated. In addition to the Phoenix calligraphers’ suit, which ADF is appealing, the Fort Des Moines Church is challenging the Iowa Civil Rights Act to avoid accommodating transgender people when opening their facility to the public for non-church functions.