10th Circuit denies religious exemption to Colorado website designer with objection to same-sex marriage

When Colorado’s anti-discrimination law (CADA) sees a religious liberty challenge, it can result in a high-profile case going all the way to the U.S. Supreme Court. In Masterpiece Cakeshop, the Court ruled in favor of a baker who refused to prepare a custom wedding cake for a same-sex marriage celebration. Instead of answering the question about service refusal, the decision hinged on statements made by an official during a state commission’s consideration of the baker’s request for an exemption from CADA that the majority found hostile toward religion and thus subject to strict scrutiny.

The latest challenge comes from a website designer who plans to begin offering wedding-related websites but who objects on religious grounds from offering sites devoted to same-sex marriages. Lorie Smith, owner of 303Creative, sought a preemptive exemption from CADA, citing among other things the Free Exercise Clause of the First Amendment.

First a federal district court and now the 10th U.S. Circuit Court of Appeals has denied that request, emphasizing the dissimilarities between her case and Masterpiece Cakeshop. The Appeals Court in a 2-1 opinion cited commissioners’ stated commitment to follow the Supreme Court’s admonition to consider respectfully religious objectors’ claims, concluding there is “no evidence that Colorado will ignore the Court’s instruction in Masterpiece Cakeshop, and thus no evidence that Colorado will enforce CADA in a non-neutral fashion.”

The dissent argues that the law is not neutral because the state offers exceptions in an “arbitrary way” and because the Commission allows “message-based refusals” (for example, a refusal to create a product containing disparaging or offensive wording) for secular objectors but not to religious objectors. The majority counters that a business open to the public “only violates CADA when it discriminates ‘because of’ a consumer’s membership in a protected class … [M]essage-based refusals are unrelated to class-status.”

Most pointedly, the majority responds in its conclusion to the dissent’s complaint that the ruling fails to recognize the importance of diverse religious perspectives:

[W]e agree … that a diversity of faiths and religious exercise…“enriches” our society. Yet, a faith that enriches society in one way might also damage society in other ways, particularly when that faith would exclude others from unique goods or services. In short, Appellants’ 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. And Colorado cannot defend that interest while also excepting Appellants from CADA.

The Supreme Court has in recent years declined repeated invitations to issue broad rules to govern disputes between laws designed to protect against discrimination and those with religious objections to same-sex marriage. Earlier this year in Fulton v. Philadelphia, a unanimous Court held that Philadelphia’s requirement that Catholic Social Services must certify prospective foster families without discriminating against same-sex couples violates their religious liberty rights, but only because of language in the city’s contract allowing broad discretion in granting exemptions to the rule. Earlier this month, the Court declined to review a Washington Supreme Court’s ruling against a florist who sought an accommodation from that state’s nondiscrimination law.