When Colorado baker Jack Phillips was asked to bake a cake for a same-sex wedding, he likely had no idea his polite refusal would snowball into one of the biggest First Amendment cases of the modern era.
Thanks to the Colorado Anti-Discrimination Act, Phillips was subject to a years-long court battle that culminated in a 2018 Supreme Court ruling that fell short of definitively affirming the baker’s right to decline his services to events he disagreed with on a religious basis, yet did rule that the Colorado Human Rights Commission had demonstrated undue hostility when addressing his case.
This left other Colorado business owners concerned that they could also be prosecuted under CADA if they declined to provide their services for same-sex weddings, such as web designer Lorie Smith of 303 Creative.
Smith, with the representation of the Alliance Defending Freedom (ADF), the firm that represented Phillips all the way to the high court, decided to take action and try to get a court to affirm that she indeed had the right to decline to lend her creative talents to celebrations of an institution that she disagreed with.
Like Phillips, who happens to have designed Smith’s wedding cake, according to the ADF, the designer will make her services available to anyone, regardless of their lifestyle choices, when issues of matrimony are not involved.
However, also like Phillips, Smith maintains that marriage is an institution between a man and a woman, and if she is going to use her God-given talents to celebrate a union, she would prefer to do so for traditional marriages only.
In 2016, ADF filed a pre-enforcement challenge to the CADA on Smith’s behalf, which would have forced her to design websites for same-sex weddings or face legal repercussions.
According to ADF, a pre-enforcement challenge is a method that can be used to test a law in court before it even takes effect. It’s a strategy most often associated with liberal groups, like the American Civil Liberties Union and Planned Parenthood.
In 2019, a federal judge ruled that Colorado officials could indeed force Smith to create websites for clients peddling messages she disagrees with.
She appealed in the 10th Circuit Court of Appeals in Denver, which ultimately upheld the previous ruling, determining that CADA’s demands supersede Smith’s First Amendment rights.
In a 2-1 ruling issued July 26, the judges determined that CADA “permissibly compels” Smith’s speech, and that it is a “is a neutral law of general applicability, and that it is not unconstitutionally vague or overbroad.”
In his dissent, however, 10th Circuit Chief Judge Timothy Tymkovich wrote that “this case illustrates exactly why we have a First Amendment” and that the decision was “in a word, unprecedented.”