The conservative majority of the United States Supreme Court has signaled sympathy for an evangelical Christian web designer whose company refuses to provide same-sex marriage services.
In that case, LGBTQ rights are opposed to the claim that freedom of speech exempts artists from anti-discrimination laws.
On Monday, judges heard more than two hours of lively arguments in Denver—area business owner Lorie Smith’s appeal seeking an exemption from a Colorado law that prohibits discrimination based on sexual orientation and other factors. Lower courts ruled in favor of Colorado.
Smith, who runs a web design company called 303 Creative, alleges that Colorado’s anti-discrimination law violates the right of artists — including web designers — to free speech under the First Amendment to the US Constitution by forcing them to express messages through their work that they oppose.
Smith, 38, said she believes marriage should be limited to same-sex couples, a view shared by many conservative Christians. In 2016, she preemptively sued the Colorado Civil Rights Commission and other state officials because she feared being punished for refusing to serve homosexual couples.
While conservative judges expressed support for Smith’s stance, liberal judges leaned to Colorado’s arguments. The court has a conservative majority of 6-3.
Conservative judge Samuel Alito asked about a case where someone made customizable speeches or wedding vows.
“Can they be forced to write vows or speeches advocating for things they detest? ” Alito asked.
The liberal judges asked Kristen Waggoner, the lawyer who represented Smith, tough questions. Judge Sonia Sotomayor said a ruling in Smith’s favor could allow a company like Smith’s to also refuse to provide services if they object to interracial marriages or the marriage of disabled people.
“Where is the line? ” Sotomayor asked.
According to Sotomayor, such a ruling would be the first time in Supreme Court history that it allowed a publicly available company to “refuse to serve a customer based on race, gender, religion, or sexual orientation.”
Colorado Attorney General Eric Olson said Smith was seeking a “license to discriminate.” Olson said her arguments would allow a business owner to decline services not only because of sincere religious beliefs, but also because of “all sorts of racist, sexist, and bigoted views.”
According to Olson, the Colorado public accommodation law in question is aimed at discriminatory sales by companies like Smith’s.
“The company can choose to sell websites that only contain biblical quotes describing the marriage between a man and a woman, just as a Christmas store can choose to sell only Christmassy items. A company simply cannot refuse to serve homosexual couples, as is being tried here, just as a Christmas business cannot announce: “No Jews allowed,” Olson said.
President Joe Biden’s administration supported Colorado in the case. Deputy Attorney General Brian Fletcher told judges that even if they were okay with Smith’s own situation, they were looking for a “very comprehensive” outcome that could allow companies to reject customers even on the unacceptable basis of race.
‘Not a riverboat’
Colorado law prohibits publicly available companies from denying goods or services to individuals based on race, sex, sexual orientation, religion, and other characteristics and to issue a notice accordingly.
Conservative judge Clarence Thomas urged Olsen what historical precedent there was for language to be directly or indirectly regulated by public accommodation laws, saying that “this is not a hotel, this is not a restaurant, this is not a riverboat or train.”
Many states have public accommodation laws that prohibit discrimination in areas such as housing, hotels, retail businesses, restaurants, and educational institutions.
Waggoner portrayed the case as a fight against government-enforced statements and described her client as an artist who made a custom creation rather than simply offering a service. Waggoner said the Colorado law forces Smith to “create language, not simply sell it.”
Waggoner said Smith “believes same-sex marriage honors Scripture and same-sex marriage is contrary to it. If the government can call this speech equivalent, it can do so for any speech, whether religious or political. According to Colorado’s theory, jurisdictions could compel a Democratic publicist to write a press release from a Republican.”
The Supreme Court has increasingly supported religious rights and associated freedom of speech claims in recent years, although it has supported LGBTQ rights in other cases. The court legalized gay marriage nationwide in a landmark 2015 decision and expanded the protection of LGBTQ workers under federal law in 2020.
Liberal judge Elena Kagan asked why a website designer who provided heterosexual couples with a standard wedding website with names, dates, pictures, and hotel information might decline to provide the exact same website to a gay couple.
“When I understand you, you say, ‘Yes, she can refuse, ‘because it’s just the fact that it’s Mike and Harry and there’s a picture of these two guys together,” Kagan told Waggoner.
The case follows the 2018 Supreme Court’s narrow verdict in favor of Jack Phillips, a Christian baker from the Denver region, who refused to prepare a wedding cake for a gay couple on religious grounds. In this case, the court refrained from introducing a free speech exemption from anti-discrimination laws. Like Phillips, Smith is represented by Alliance Defending Freedom, a conservative religious rights group.
Conservative judge Amy Coney Barrett said Waggoner is on her “strongest ground when you talk about sitting down and designing and working out the graphics to adapt them for the couple.” Barrett asked whether the First Amendment would still protect Smith if she declined to provide a gay couple with a “plug and play” website that a same-sex couple could buy.
A decision is expected by the end of June.