Colorado passed a public accommodations law that would require certain service providers to communicate messages inconsistent with their beliefs. This law would require Ms. Smith to design websites for same-sex marriages, despite that fact that doing so would violate her religious belief that marriage is between one man and one woman. Ms. Smith works with people from all walks of life, but, like most artists, cannot promote every message. Ms. Smith’s decisions about which projects to design are based on what message she is being asked to express, not who requests it.
Ms. Smith realized that Colorado was censoring her speech and decided to challenge the law to protect her freedom. Even though Colorado officials admitted that Ms. Smith works with people from all walks of life, including those who identify as LGBT, that she chooses what to create based on the message requested, and that every website she creates conveys a unique message, the state still says it can force her to speak messages about marriage that contradict her core beliefs.
In July 2021, the Tenth Circuit Court of Appeals ruled against Ms. Smith, holding that Colorado can force her to create websites promoting messages that go against her beliefs about marriage. The court ruled against Ms. Smith despite admitting that her designs are “pure speech” and that Colorado’s purpose is to completely “[e]liminate [her] ideas” from the public dialogue. The dissent called the majority’s holding “unprecedented” and “staggering,” stating that “[t]he Constitution protects Ms. Smith from the government telling her what to say.”
Ms. Smith appealed to the U.S. Supreme Court on September 24, 2021, and the Court granted her petition for review on February 22, 2022.
CLS’ Center for Law & Religious Freedom filed an amicus brief with the Supreme Court in support of Ms. Smith. The sole “state interest” the Tenth Circuit supported is “preventing ongoing discrimination against LGBT people.” The brief argues that the refusal to provide a service or product because of what it is, rather than because of who requested it, is not, as a matter of constitutional fact, discrimination against a group based on that group’s identity. The distinction is important for maintaining liberty, including religious freedom and free speech.
The Supreme Court heard oral arguments on December 5, 2022.