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Colorado’s attorney general on Friday rejected his office’s arguments in a U.S. Supreme Court case involving a Denver-area graphic designer that the state’s anti-discrimination laws violate her right to free speech.
Phil Weisser argued in a written brief that Colorado’s public accommodations law does not infringe on business owners’ free speech rights. Lori Smith, owner of 303 Creative graphic design company, is asking the Supreme Court to give her the right to post a message on her website saying she won’t design a wedding website for same-sex couples because of her religious beliefs. .
“Fundamentally, 303 Creative doesn’t want to offer its services equally to all customers,” Weiser said in a press release, explaining his argument in defense of the state law. An advertisement that says “straight-married couples only” is not protected speech under the First Amendment.
The Wieser filing is a small step forward in a case that has been winding its way through Colorado courts for years. Last year, the Denver-based 10th Circuit Court of Appeals ruled 2-1 that Smith’s request violated Colorado’s anti-discrimination law and that the act itself did not violate the First Amendment.
Smith appealed the decision. In February, the Supreme Court agreed to take up the issue of freedom of speech – but also the freedom of religion aspect.
In other words, the justices will decide whether enforcing Colorado’s public accommodations law, which prohibits discrimination based on sexual orientation, violates the First Amendment’s free speech clause.
Smith and her lawyers argue.
“This lawsuit is about protecting every American’s right to speak what they believe,” said Jake Warner, an attorney with the Alliance Defending Freedom, a conservative legal group representing Smith.
The case is similar to the 2018 Masterpiece Cakeshop case, in which a Lakewood baker was charged after refusing to make a wedding cake for a same-sex couple. Unlike Masterpiece, Smith’s lawsuit was filed before she started her wedding website design career.
Both sides view the case as potentially resolving the constitutional question of whether creative professionals are required to accept commissions for same-sex ceremonies, regardless of their religious views on such unions.
“I’ve been waiting almost six years to create and design wedding websites without Colorado forcing me to say things I don’t believe in,” Smith wrote in a National Review column earlier this year. “I’m not just standing up for my own freedom of speech. Just as I don’t want to be forced to say something that goes against my core beliefs, I don’t believe it should be any other way.
If legal precedent is any indication, Smith could face an uphill battle at the nation’s highest court. The House of Lords has enforced the anti-discrimination law.
Weiser said his office plans to lean on that story.
“The code of conduct to prevent discrimination is protected activity and it’s critical that we don’t cross that line,” Weiser said. “When a business says they are open to the public, it means they have to serve all members of the public.”
ADF, the organization representing Smith, will now have an opportunity to respond to Weiser’s brief. Both sides are expected to file oral arguments in October.
CPR’s Alison Sherry contributed to this report.
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