Around seven years ago, Lorie Smith was ready to take a professional leap. She wanted to expand her web design business into the world of weddings and start offering custom website services to engaged couples. 

There was just one problem: Smith had a feeling that particular leap would get her in trouble with the law. 

That hunch stemmed from news reports about another Colorado business owner and Christian who, like Smith, believes marriage should be reserved for unions between a man and a woman. By 2016, Jack Phillips, a baker, had already spent four years in court defending his decision not to design a custom wedding cake for a gay couple. 

If Smith began offering wedding websites but turned away members of the LGBTQ community, she seemed destined for a similar fate. She was so torn about what to do that she turned to her pastor for help and then, after praying about it, to a famous group of religious freedom attorneys. 

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As a result of those conversations, Smith held off on expanding her business. Instead, she filed a lawsuit, which, almost seven years later, has become one of the most contentious battles of the U.S. Supreme Court’s current term.

With the case, Smith is fighting for protection from Colorado’s public accommodations law, which prohibits discriminating against customers because of their sexual orientation, among other protected traits. She argues that being forced to design websites for gay couples would violate her free speech, since, in her mind, such a business transaction would represent a message of support for same-sex marriage. 

“Lorie serves everyone, but she cannot express every message through her custom artwork,” says Jake Warner, senior counsel for Smith’s law firm, the Alliance Defending Freedom. He noted that Smith does serve LGBTQ customers in other contexts. 

“This case is about whether the government can force artists to say things they don’t believe.” - Jake Warner, Alliance Defending Freedom

Smith’s supporters, including gay rights activist Dale Carpenter, filed amicus briefs arguing to protect artistic speech. They said that a ruling for Smith would protect other business owners, such as a Black tattoo artist asked to provide racist symbols for customers.

Smith’s opponents object to the case for multiple reasons, not least of which is the fact that Smith filed the lawsuit before she started selling wedding websites. Unlike Phillips’ legal battle, which involved a gay couple, Charlie Craig and David Mullins, describing what it felt like to be turned away, Smith’s features a hypothetical scenario that’s more difficult to debate.

“(The case) doesn’t offer real LGBTQ people as sympathetic characters to demonstrate the harm,” says Rachel Laser, president and CEO of Americans United for Separation of Church and State, which filed a Supreme Court brief opposing Smith’s position. In their absence, Smith and her attorneys can control the narrative, making it seem as if it’s unreasonable to ask a business that’s open to the public to actually serve all members of the public, she added. 

Laser and others, including Colorado officials, claim that a Supreme Court win for Smith could threaten civil rights laws across the country, making it harder to guard against discrimination based not just on sexual orientation, but also race or religion. Smith’s supporters, on the other hand, say a win for Smith would strengthen everyone’s free speech rights, ensuring that LGBTQ business owners, for example, could control what messages their own products send. 

“This case is about whether the government can force artists to say things they don’t believe. In this way, a win for Lorie is a win for all Americans, including those who disagree with her on marriage and other issues,” Warner says. 

Finding a balance

Like the Colorado baker case before it, Smith’s case, which is formally known as 303 Creative v. Elenis, involves a complicated mix of competing protections. In order to declare a winner, judges have had to and will have to determine how to balance a business owner’s rights with a customer’s rights, a conservative religious person’s rights with a gay person’s rights and state-level civil rights laws with the First Amendment. 

Since she filed her lawsuit in September 2016, Smith has argued that Colorado currently gets the balance wrong. She claims the state’s public accommodations law, the Colorado Anti-Discrimination Act, tramples the free speech and religious freedom rights of business owners, forcing them to choose between following the law and following their beliefs. 

“The First Amendment protects people like Lorie and people who disagree with Lorie. The government shouldn’t force everyone to say something they don’t believe,” Warner says. 

“Every ruling that grants and validates a license to discriminate further jeopardizes not just LGBTQ people, not just religious minorities, but really all of us.” - Rachel Laser, Americans United

Colorado officials reject Smith’s characterization of the state’s legal landscape, arguing that the Colorado Anti-Discrimination Act was not designed to punish or otherwise interfere with the work of business owners. Instead, the goal has been to ensure equal access to the marketplace for members of marginalized communities, including LGBTQ Americans, they say.

“The act requires only that the company sell whatever product or service it offers to all regardless of its customers’ protected characteristics. The act does not, as the company claims, compel a Hindu calligrapher to ‘write flyers proclaiming “Jesus is Lord.’ ’’ It requires only that if the calligrapher chooses to write such a flyer, they sell it to Christian and Hindu customers alike,” Colorado officials wrote in a Supreme Court brief

In the lower courts, judges expressed sympathy for Smith’s plight but ultimately ruled against her. They accepted the state of Colorado’s argument that Smith’s free speech and religious freedom rights could be limited in the service of protecting customers from discrimination. 

“(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. And Colorado cannot defend that interest while also excepting (Smith) from (the Colorado Anti-Discrimination Act),” explained the July 2021 ruling from the 10th U.S. Circuit Court of Appeals. 

Smith appealed to the Supreme Court soon after this ruling was handed down and, in February 2022, the justices agreed to hear her case. The court likely saw 303 Creative v. Elenis as a good opportunity to revisit questions left unanswered in the Colorado baker case, which the Supreme Court ruled on in June 2018. (Phillips won 7-2, but the ruling was narrow in scope and based on the behavior of Colorado officials during legal proceedings.) 

Who wins, who loses

During oral arguments in December last year, the justices and attorneys for both sides, as well as for the Biden administration, which joined the case to defend Colorado’s policy, debated a wide range of concerns, as well as a dizzying array of hypothetical scenarios.

Some of the key questions raised included whether a wedding website truly represents speech, whether there’s a difference between refusing to sell a wedding website to a gay couple and refusing to serve gay customers at all, and whether it’s possible to rule for Smith without undermining civil rights laws nationwide. 

In the lower courts, judges expressed sympathy for Smith’s plight but ultimately ruled against her. They accepted the state of Colorado’s argument that Smith’s free speech and religious freedom rights could be limited.

The discussion seemed to confirm more liberal court watchers’ fear that Smith would have no problem winning the votes of the Supreme Court’s conservative majority. At oral arguments, most of the justices appeared convinced that the Colorado Anti-Discrimination Act needed to be adjusted, although they shared no clear solutions for how to update it without opening the door to many more varieties of service refusals. 

“Many of the justices were asking the advocates to help them identify lines and limits. It is unlikely that any of the justices believes that public-accommodations laws never implicate First Amendment rights and also unlikely that any of them believes that they always do. What, then, is the principle, factor or consideration that judges and regulators can use to distinguish between impermissible and permissible uses of such laws?” said Richard Garnett, a professor of law at the University of Notre Dame, to the Deseret News in December.

The court’s ruling, which is expected by the end of June, will likely boost protections for business owners like Smith while trying to minimize the possibility of future conflict. But it remains unclear whether such an effort will be successful, or whether the justices are dooming themselves to dozens of future cases centered on the need for further clarification. 

Laser is among those who believe the latter outcome is more probable and that a win for Smith will hurt the LGBTQ community and others. Any ruling that allows for customers to be turned away invites more bias, not less, she says. 

“Every decision that grants and validates a license to discriminate further jeopardizes not just LGBTQ people, not just religious minorities, but really all of us,” Laser says. 

But Warner and others who support Smith’s arguments remain confident that the country’s civil rights framework is not about to collapse. Past lower court rulings in favor of creative professionals who object to same-sex marriage have resolved conflict, not fueled it, Warner says. 

“If you look at where this freedom has been upheld, what has been the result? That all artists can thrive,” he says.   

This story appears in the March issue of Deseret Magazine. Learn more about how to subscribe.