August 4, 2021
A recent decision of the U.S. Court of Appeals for the 10th Circuit – the regional federal court that includes Utah – raises significant issues of free speech and religious freedom that are likely to reverberate into the future.
The case arose in Colorado. As many now know because of a previous U.S. Supreme Court decision, Colorado has a law that prohibits businesses which provide services to the general public from doing so in a way that discriminates against people in specific categories, including based on sexual orientation.
When someone believes they have been discriminated against, they can make a complaint to the Colorado Civil Rights Commission (which can also launch its own investigations), which determines whether the business’s action actually was discriminatory.
In the previous high-profile case, a complaint was made when a cake decorator declined to create a wedding cake for a same-sex wedding. In that instance, a member of the civil rights commission had made some intemperate remarks about the religious beliefs of the baker, and there was evidence the commission had allowed other bakers to decline requests for cakes supporting a religious teaching about marriage. These specific circumstances led the Supreme Court to conclude the baker had been targeted for unfavorable treatment for his beliefs, in violation of the free exercise clause of the First Amendment.
Even with that legal success, the baker has been subjected to new complaints for declining to create a cake that would celebrate a gender transition.
This is the background for the 10th Circuit decision last week. Knowing that a refusal to provide services for same-sex weddings could create legal liability, a web design company in Colorado challenged the state’s anti-discrimination law. The plaintiff’s hope was to get the federal courts to declare that the business could (1) decline to create custom websites for same-sex weddings and (2) include on their website a statement explaining the owner’s religious beliefs about making a distinction between weddings of a husband and wife and other weddings.
Under current Colorado law, both decisions would be illegal. Colorado’s discrimination law prevents businesses making distinctions based on sexual orientation. The law also prohibits advertising that suggests the business will discriminate (think “no Irish need apply” signs).
Since this case was brought in anticipation of a complaint, rather than in response like the cake decorator case, it could not be resolved based on unique facts. This circumstance required the panel of judges from the 10th Circuit who heard the case to address not just a religious freedom claim, but also a claim that the law violated the First Amendment’s free speech clause by requiring the owner of the web design firm to endorse messages with which she disagreed.
The court decided 2-1 in favor of the state.
The majority agreed with the business owner that creating wedding websites is protected speech, since the websites are actively created by the business rather than being designed by the customer and merely housed on a server. That conclusion did not end the analysis, though. The majority also concluded that the state “has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace.”
It was not enough for the court that the business would provide other services to LGBT customers or that same-sex couples could get the same service from another provider: The ruling said that “LGBT consumers will never be able to obtain wedding-related services of the same quality and nature as those that Appellants [the business bringing the lawsuit] offer.” To the majority, this meant that the state’s approach of requiring this particular business to provide the service was the only way to advance its interests.
Regarding the proposed statement on the business’s website, the majority concluded, “Colorado may prohibit speech that promotes unlawful activity, including unlawful discrimination.”
The majority also concluded the discrimination law would not infringe the business owner’s religious freedom since there was “no evidence that Colorado will enforce” the discrimination law “in a non-neutral fashion” (i.e., treat religious and secular refusals to create content differently). The majority distinguished the Colorado law from the Philadelphia law invalidated by the Supreme Court earlier this year. The court had pointed to the possibility of exemptions from the Philadelphia foster care law, which allowed religious and nonreligious groups to be treated differently. The majority in the Colorado case concluded there were no relevant exemptions from the discrimination statute and thus no unequal treatment of religious and nonreligious businesses.
One of the judges on the panel wrote a vigorous dissent. The dissenting opinion frames the conflict differently than the majority:
No one denies Lorie Smith’s sincere religious beliefs, good faith, and her willingness to serve clients regardless of race, creed, ethnicity, or sexual orientation. But what she will not do is compromise her beliefs and produce a message at odds with them. The Constitution neither forces Ms. Smith to compromise her beliefs nor condones the government doing so. In fact, this case illustrates exactly why we have a First Amendment. Properly applied, the Constitution protects Ms. Smith from the government telling her what to say or do.
The dissent describes the majority’s ruling on free speech as novel, arguing that the state could accomplish its objective of preserving market access in ways that would not interfere with speech, such as by officially exempting expressive conduct or allowing custom artists to select what messages they will convey.
The dissent also argued that the Colorado law is just like the Philadelphia law because the process of having the Colorado Civil Rights Commission determine which claims of discrimination have merit gives the government wide discretion so that it can “decree when a religious objection is valid and when it is not, doling out punishment and reprieve based on its own standards.”
It seems likely that the Supreme Court will be asked to review this decision. The free speech analysis, in particular, raises new issues that are likely to come up in other states. The dissenting opinion’s arguments about the discretion of the Colorado Civil Rights Commission could be a natural extension of the Fulton v. City of Philadelphia case that the Supreme Court may want to clarify.
The bottom line is that the speech and religious freedom implications of the decision could have impacts beyond the specific context of the application of discrimination laws. That means this case is likely to keep causing waves, either as a precedent for future decisions or in future Supreme Court review.
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