From the dissent, by Judge Tymkovich, in 303 Creative:
It is important to understand from the outset that Ms. Smith and Colorado agree that she will serve anyone, regardless of protected class status. In the district court, both she and Colorado stipulated that: (1) Ms. Smith is ”willing to work with all people regardless of classifications such as race, creed, sexual orientation and gender”; and (2) Ms. Smith does “not object to and will gladly create custom graphics and websites for gay, lesbian, or bisexual clients or for organizations run by gay, lesbian, or bisexual persons so long as the custom graphics and websites do not violate [her] religious beliefs, as is true for all customers.” Aplt. App. 2+322. Ms. Smith and Colorado also agree that she “will decline any request to design, create, or promote content that: contradicts biblical truth; demeans or disparages others; promotes sexual immorality; supports the destruction of unborn children; incites violence; or promotes any conception of marriage other than marriage between one man and one woman.” Id. At 2-323. And counsel for Ms. Smith confirmed at oral argument that she would represent clients regardless of sexual orientation in creating websites that celebrate opposite-sex weddings. (55-5)
This establishes that there is no discriminatory intent, and that the policies are applied uniformly, i.e., flow from religious belief. And it makes clear that it is her involvement in and expressive action that are the basis for her commitments - the design work is expressive of her, including her religious commitments which do, after all, go to her identity.
The dissent then makes what I think is the key point. On the majority’s approach, 303 Creative is compelled to create expressive content celebrating same-sex weddings (contrary to religious beliefs) as long as she creates expressive content celebrating opposite-sex weddings (consonant with religious beliefs). Compelled speech, in other words, is what the majority approves of. (55-56) The Supreme Court cases on compelled speech require a different outcome. (56-64) ”A state may not regulate speech itself as a public accommodation under anti-discrimination laws. But CADA does so here, making Ms. Smith’s artistic talents the vehicle for a message anathema to her beliefs.” (69) As CADA by its own terms and as administered by Colorado has exceptions, its application to religious beliefs here clashes with Supreme Court holdings. I think the dissent is right to point to application to other sorts of artistic endeavors, that the majority’s view entails compelled speech in a host of situations where it is not justified, i.e., violates the constitutional order. Islamic artists compelled to provide Zionist murals, Jewish cantors required to perform Catholic services, and so on. (All of these involve someone who is paid for their work, so well within the scope of CADA according to the majority.)
The dissent also makes out a strong case that CADA is not neutral as to religious beliefs and that it involves exemptions that are based on the content of message, e.g., secular reasons for refusal to produce expressive content are accorded more consideration than are religious reasons. This decision puts the Tenth Circuit into conflict with the Eighth Circuit. There is hope that the Supreme Court will take up this case and sort out at least some of the boundaries for interaction between the First Amendment and anti-discrimination statutes.
A final few small points. The majority downplays the import of the holding of the Supreme Court in Masterpiece Cakeshop, brushing aside the religious bigotry of the record as found by that Court. It is a little troubling that the majority is not concerned that, on remand to Colorado, one of the commissioners asserts that the remarks noted with disapproval by the Supreme Court were right, or that counsel for the commission describes religious beliefs as beliefs “termed” sincere religious beliefs. Perhaps not enough to vitiate the decision-making, but also not the language of people intent on playing an unbiased adjudicatory role. The beliefs are not “termed”, they are religious beliefs and should be treated as such. Just so it would be an improvement if the majority here (and other courts) would stop using quotation marks around sincere religious beliefs and religious belief -- it signals a lack of sincerity by the courts, that they hold the beliefs as sincere religious beliefs in name only, as window-dressing.
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