Written by Don Byrd

Via Religion Clause, a federal district court in Colorado has ruled against a business owner who argued that enforcing a provision of state law (the Communications Clause) that bars businesses from posting their intention to discriminate on the basis of sexual orientation violates her First Amendment right to free exercise of religion.

Lorie Smith designs custom websites for couples getting married, but refuses to provide her services to same-sex couples, citing her religious beliefs with regard to marriage. She argues she should be able to post a message explaining her position on her website without running afoul of the state’s public accommodation law, which includes the Communications Clause. The judge disagreed:

If the state’s interest in preventing discrimination on the basis of sexual orientation is compelling, it necessarily must follow that the state has a similarly-compelling interest in preventing persons or businesses from threatening to do that which the law prohibits. For example, the state’s interest in prohibiting businesses from engaging in racial discrimination would be rendered a mockery if businesses could nevertheless post a “WHITES ONLY” sign near the entrance to the business with the intent of discouraging patronage, even if the proprietors agreed to admit any minority individuals who dared to ignore the sign and seek entrance. Thus, the Court finds that the Communication Clause is supported by an important (indeed, compelling) state interest in discouraging discrimination against protected groups. For the same reasons, the Court also finds that the Communication Clause is rationally related to the state’s interest in discouraging discrimination in the provision of public accommodations and business services.

 Accordingly, Ms. Smith cannot show that the Communication Clause violates her freeexercise rights under the First Amendment.

In the Masterpiece Cakeshop case, the U.S. Supreme Court faced a somewhat similar challenge to the same Colorado law. But as the judge here point out, the Supreme Court “avoided a ruling on the merits.”  Thus that case provided little guidance here.

You can read the opinion here: 303 Creative LLC v. Elenis.