Supreme Court Final Day

In this June 20, 2019, file photo, the Supreme Court is seen under stormy skies in Washington. Two issues that could determine the distribution of political power for the next decade await resolution on the Supreme Court's final day of decisions before a long summer break. Chief Justice John Roberts could well be the author of decisions on both politically charged topics Thursday, June 27, whether to allow a citizenship question on the 2020 census and place limits on drawing electoral districts for partisan gain.

After a lower court ruled that the Colorado Anti-Discrimination Act compels her to create content for opposite-sex and same-sex couples, website designer Lorie Smith is asking the U.S. Supreme Court to consider whether the decision amounts to an unconstitutional burden on her religious exercise.

The case pits the free speech rights of the faithful against the government's interest in combating discrimination based on sexual orientation, in an instance where the two are at odds.

Although Smith claimed she would not discriminate against LGBTQ clients, she simultaneously sought to create wedding websites in accordance with her Christian beliefs, which included advertising to future clients that she "will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman."

By a 2-1 decision in July, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit upheld CADA, as the state law is known. CADA prohibits the refusal of goods or services based on sexual orientation in places of public accommodation. The panel's majority concluded the law applied to Smith and her company, 303 Creative, because she sought to sell her services to the public.

Senior Judge Mary Beck Briscoe, an appointee of the Clinton administration, acknowledged the law compelled Smith to create content in ways that violate her religious beliefs, but CADA is "narrowly tailored to Colorado’s interest in ensuring equal access to the commercial marketplace."

Smith has now filed an appeal with the Supreme Court, arguing the effect of the ruling is to embolden governments to regulate opinions through anti-discrimination laws.

"The Tenth Circuit took the extreme position that the government may compel an artist — any artist — to create expressive content, even if that content violates her faith," Smith's attorneys at the Alliance Defending Freedom wrote in a petition to the Supreme Court. The 10th Circuit's majority opinion indicated the ruling only applied to artists engaging in commercial, versus uncompensated, activity.

Smith's petition cited to the dissent from Chief Judge Timothy M. Tymkovich, an appointee of President George W. Bush. Tymkovich called the decision unprecedented, and characterized the anti-discrimination law's application as a means to force Smith to deliver a "government-approved message."

"Though I am loathe to reference Orwell, the majority’s opinion endorses substantial government interference in matters of speech, religion, and conscience," he added.

Smith is also asking the Supreme Court, should the justices hear her case, to consider whether to overrule its 1990 decision in Employment Division v. Smith. The ruling established that governments can enact laws that place burdens on religious exercise, as long as the laws do not single out religion. It was a key clarification of First Amendment rights that shifted the understanding of religious-based exemptions.

Smith argues that the circumstances of her case, in which the government allegedly singled out religious speech for enforcement, flies in the face of the Smith decision. She believes either Smith or the 10th Circuit's decision may stand, but not both.

The Colorado Attorney General's Office has defended CADA in the litigation, saying the law merely prohibits businesses from denying service to some customers based on a protected trait — their sexual orientation.

The case is 303 Creative v. Elenis et al.

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