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The aclu has sided with the state against small business arguing that the owner could be forced to post pictures of registered gay unions against their will


Lorie Smith is the owner of 303 Creative, a graphics and website design company based in Colorado. she is selectively about the messages she creates or promotes because of her Christian faith: “I am always careful not to communicate any ideas or messages… that are inconsistent with my religious beliefs.”

blacksmith is basically ready however, in order to produce work on behalf of gay and transgender clients, she wants to start offering wedding-related services exclusively to straight couples. Believing that same-sex civil unions are contrary to God’s will, she has no intention of hosting gay civil union images, nor of making her company complicit in celebrating them. In her complaint, Smith wrote that doing otherwise “would jeopardize my Christian testimony”.

Noting that Colorado’s antidiscrimination law requires them to do so, and desiring not to violate CADA as it stands, Smith challenged CADA prior to enforcement.

Smith first filed her lawsuit in 2016. Their allegations that CADA violated, among other things, the First and Fourteenth Amendments were heard in the United States District Court for the District of Colorado, which moved to dismiss.

The US Supreme Court announced in February that it would hear 303 Creative LLC v. Elenis later this year.

The case concerns whether the state — in this case, by exercising its powers through a public accommodations law — can compel an artist to speak or remain silent without violating the artist’s First Amendment rights.

The issue was essentially raised before the Supreme Court in 2018. However, the court refused to rule on whether Baker Jack Phillips, owner of Masterpiece Cakeshop, and other such business owners can use religious objections to refusing service to certain individuals, she ruled that the Colorado Civil Rights Commission displayed anti-religious bias toward Phillips, who had refused to marry a same-sex couple bake cakes. After the ruling, antidiscrimination laws were still state-enforceable but enforceable by state officials have been warned not to denigrate the religious beliefs of conscientious objectors.

Among the amicus briefs filed in Smith’s case (e.g., by the Claremont Institute’s Center for Constitutional Jurisprudence, the United States Catholic Bishops’ Conference, etc.) was one filed by the American Civil Liberties Union. The ACLU has one mandate to “combat government abuse and vigorously defend individual freedoms, including speech and religion.”

In its amicus brief, the ACLU distinguished between an artist and an artist who intends to open his or her business to the general public (i.e. between artists and artist-run businesses).

The ACLU wrote that “CADA … leaves companies free to choose the content of any product or service they sell to the public and only requires them to offer those goods for sale in a non-discriminatory manner.” The example given is that unlike Hanukkah goods, a Christmas shop may sell exclusively Christmas-related goods, but may not refuse to sell the former to Jewish customers.

The ACLU proposed that CADA regulate deals open to the public, but not for individuals who “instead make their living through personal, individualized contracts.” The ACLU then compared Smith’s case to a hypothetical “architectural firm serving the public [that refuses] Designing houses for Muslims because it goes against their religion.”

Scott Shackford of Reason provided another example demonstrating the ACLU’s problems with mixing language and customer discrimination: “When 303 Creative denies a client’s request to host a series of images of an ISIS terrorist attack, it is discrimination against the client’s religion, if the customer is also a Muslim? It’s clearly not… She refuses to host images she finds offensive.”

Shackford stressed that the ACLU is “doing everything in its power to encourage the court to deny any consideration of Smith’s and 303 Creative’s First Amendment rights, even going so far as to attempt to restate the central question.” , to make it appear that these rights are not relevant to the case.”

In a June opinion pieceDiscussing the death threats, cyberattacks, harassment and ongoing threats she has faced for her attitude, Smith wrote: “Whether your beliefs agree with mine or not, we are all at risk when the government in power at the moment comes into power to say: ‘These views are permissible. These views are not.’” The ACLU has sided with the state against small business, arguing that the owner could be forced to post pictures of registered gay unions against their will

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Joanna Swanson

Joanna Swanson is Europe correspondent at the Thomson Reuters Foundation based in Brussels covering politics, culture, business, climate change, society, economies and inclusive tech. With specific focus in breaking news, she has covered some of the world's most significant stories.