The 10th U.S. Circuit Court of Appeals has created a precedent that the state of Colorado can discriminate against an artist, forcing her to violate her beliefs and provide messages she rejects, in pursuit of its “anti-discrimination” laws.
The ruling came in a case that now could be used to force a web designer to create sites with messages to which she objects based on her sincere religious faith.
The 2-1 decision sets up another opportunity for the Supreme Court to rule on the agenda pursued by many governmental units to punish Christians for refusing to promote the LGBT campaigns of various activists.
And the majority was targeted in a powerful rebuke by Chief Judge Timothy Tymkovich’s dissent.
The fight is over a case brought by Lorie Smith, and her 303 Creative LLC, against the state of Colorado over its “non-discrimination” laws that require her to express a message that offends her.
The majority said the state has the right to discriminate against her for her beliefs, and she must carry the message the state imposes. They wrote, “[Smith’s] Free Speech and Free Exercise rights are, of course, compelling. But so too is Colorado’s interest in protecting its citizens from the harms of discrimination.”
Tymkovich, however, noted that the 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 majority, he said, created a “novel” position that “the government may force Ms. Smith to produce messages that violate her conscience. In doing so, the majority concludes not only that Colorado has a compelling interest in forcing Ms. Smith to speak a government-approved message against her religious beliefs, but also that its public-accommodation law is the least restrictive means of accomplishing this goal.
“No case has ever gone so far. Though I am loathe to reference Orwell, the majority’s opinion endorses substantial government interference in matters of speech, religion and conscience. Indeed, this case represents another chapter in the growing disconnect between the Constitution’s endorsement of pluralism of belief on one hand and anti-discrimination laws’ restrictions of religious-based speech in the marketplace on the other.”
He summed up the majority’s conclusion: “It seems we have moved from ‘live and let live’ to ‘you can’t say that.'”
The issue was that while Smith would provide web services for any customer, she would not create messages that violate her Christian faith. She brought a pre-enforcement case against the state’s activist employees – who famously derogated Christianity in their attack on Jack Phillips of Masterpiece Cakeshop, and lost that ruling at the Supreme Court because of their “hostility” to faith.
Phillips had declined to use his creative artistry to promote and same-sex wedding and was punished by the same procedures Smith is challenging.
He’s now subject of a second complaint, a scenario that was staged to draw from him a refusal to create a cake for a sex-change procedure. That dispute likely is headed to the Supreme Court.
Constitutional scholar Jonathan Turley said the web ruling also could end up in a “major showdown” at the Supreme Court.
The case could allow “a hitherto evasive court to rule directly on the conflict between anti-discrimination laws and the religious clauses. I have previously written that I view these controversies as best addressed as free speech rather than free exercise cases. The Tenth Circuit decision reaffirms a growing conflict among the circuits and offers an especially strong case for the court to consider such a major reframing of such conflicts,” he said.
He noted that Supreme Court ruled narrowly in Philips’ case, because the state of Colorado openly had been hostile to faith. In that decision, the Supremes said, “The commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.”
The high court recently refused to act in a similar case, an attack by the state of Washington on a Christian florist who declined to violate her faith in her business – although she had a policy of serving all customers, she would not create a message that violated her faith.
Even the majority admitted that Smith was “willing to work with all people regardless of sexual orientation. Appellants are also generally willing to create graphics or websites for lesbian, gay, bisexual, or transgender (‘LGBT’) customers.”
The dispute was over the state ordering her to create messages to which she objected.
The court admitted the issue was involving only “the message/speech of the event, and not upon the sexual orientation of the customers.”
Nevertheless, the two judges ruled the state court force her to carry its message.
Turley suggested the scenario is ripe for the Supreme Court to overturn its own precedent on “neutral” laws that impact Free Speech.
Tymkovich warned, “Colorado is rightfully interested in protecting certain classes of persons from arbitrary and discriminatory treatment. But what Colorado cannot do is turn the tables on Ms. Smith and single out her speech and religious beliefs for discriminatory treatment under the aegis of anti-discrimination laws.”
He said, “The First Amendment prohibits states from ‘abridging the freedom of speech’ or the ‘free exercise’ of religion. … And the freedom to speak necessarily guarantees the right to remain silent.”
He said, “I cannot agree that Colorado may force Ms. Smith to create messages or stay silent contrary to her beliefs.”
Literally dozens and dozens of outside groups had expressed an interest in the outcome of the case, from the far-left People for the American Way to dozens of states.
It was Judges Michael Murphy and Mary Beck Briscoe who bluntly claimed, “We hold [the Colorado law] permissibly compels appellants’ speech.”
The law has exemptions for religious organizations and places restricted to “one sex if such restriction has a bona fide relationship to the goods …” but has no exemption for business owners of faith.
They also admitted, in their opinion, that the state declined to prosecute multiple instances where “other bakers … refused to create custom cakes that disparaged same-sex marriages,” in violation of their own beliefs.
Colorado’s executive branch, of course, is under the control of Gov. Jared Polis, who openly boasts of his homosexual lifestyle choice and has installed his male partner in the governor’s mansion.
The two-judge majority also conceded “that freedom of speech prohibits the government from telling people what they must say,” but then rejected that, because while the creation of websites is “pure speech” and “inherently expressive,” and it is a “content-based restriction,” homosexuals’ access to that particular web services company is mandatory.
“To be sure, LGBT consumers may be able to obtain wedding-website design services from other businesses; yet, LGBT consumers will never be able to obtain wedding-related services of the same quality and nature as those that appellants offer,” they claimed.
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