Lorie Smith: Supreme Court Tories seem to side with web designer who doesn’t want to work with same-sex couples


Several conservative members of the Supreme Court appeared sympathetic Monday to arguments from a graphic designer who is looking to start a website business to celebrate marriages but doesn’t want to work with same-sex couples.

Conservative judges looked at the case through a free speech lens and suggested that an artist or person creating a personalized product could not be compelled by the government to express a message that violates their religious beliefs .

Judge Neil Gorsuch noted that a businessman’s objection would not be based on same-sex couple status, but rather on the message the businessman did not want to send. The question is not the “who” said Gorsuch, but the “what”.

Judge Amy Coney Barrett told an attorney for the designer that her “strongest argument” is that the designer’s work is “bespoke.”

Judge Clarence Thomas spoke about the history of public housing laws that intersect with the First Amendment. “It’s not a restaurant, it’s not a riverboat or a train,” he said.

On one side of the dispute is the designer, Lorie Smith, whose company is called 303 Creative. She said she has yet to move forward with expanding wedding websites because she fears violating a Colorado public housing law. She said the law requires her to express messages that are not in line with her beliefs. State and LGBTQ rights supporters responded that Smith was simply seeking license to discriminate in the marketplace. They said the law covers a businessman’s conduct, not his speech.

The case comes as LGBTQ rights supporters fear the 6-3 Conservative Majority – fresh off its decision to overturn a nearly 50-year-old abortion precedent – ​​is aiming to ultimately overturn a landmark 2015 opinion called Obergefell v. Hodges who paved the way for same-sex marriage across the country.

Thomas, for example, when Roe v. Wade was overturned, explicitly called on the court to review Obergefell.

In court on Monday, Judge Samuel Alito forcefully noted that the majority opinion in Obergefell has carefully pointed out that there are “honourable” people who disagree with same-sex marriage.

Smith’s lawyer, Kristen Waggoner, came under fire from the Liberals on the bench who floated a series of hypotheticals designed to explore the potential ramifications of the case should Smith prevail. They suggested that other companies might discriminate based on race or physical disability.

Judge Ketanji Brown Jackson asked about a mall photographer’s business that sought to capture the feelings of a bygone era and only wanted white children to be photographed in Santa’s lap. “This company,” she said, “wants to express its own take on nostalgia for Christmases past by recreating classic Santa Claus scenes from the 1940s and 1950s, they do it in sepia tone and they personalize each one.” She insisted that the photographer draw a sign saying “only white children” could participate.

Judge Sonia Sotomayor repeatedly asked “what is the dividing line” and asked about people discriminated against based on interracial marriage or physical disability.

“What about people who don’t believe in interracial marriage? Sotomayor said, “Or people who don’t believe disabled people should get married? Where is the line? ” she asked.

Judge Elena Kagan noted that two of her clerks are currently hired. She said the wedding websites are made up of graphics and links to hotels and are not works of art. At another point, she wondered if a web designer could just say “sorry,” same-sex marriages aren’t “my kind” of marriage without violating state anti-discrimination laws.

The House is expected to pass a bill this week requiring states to recognize another state’s legal marriage if Obergefell is annulled. The bill would then go to the White House for President Joe Biden’s signature.

“I’m concerned,” Mary Bonauto, lead attorney for the Gay and Lesbian Alliance Against Defamation, told CNN in an interview. “I’m concerned only because the Court seems to be looking for cases and literally changing established law time and time again.”

Four years ago, the court considered a similar case involving a Colorado baker who refused to bake a cake for a gay wedding, citing religious objections.

This 7-2 decision in favor of the baker, however, related to specific circumstances in this case and did not apply generally to similar disputes nationwide. Now the judges are taking a fresh look at the same state’s anti-discrimination law. Under the law, a company cannot refuse to serve people because of their sexual orientation.

Smith said she’s willing to work with all people, regardless of sexual orientation, but she refuses to create websites that celebrate same-sex marriage.

“The State of Colorado requires me to create personalized, one-of-a-kind works of art that communicate and celebrate a different view of marriage, a view of marriage that goes against my core beliefs,” Smith told CNN in an interview.

She reiterated her point in an interview Monday night, telling CNN’s Laura Coates, “There are messages I can’t create no matter who asks for them.”

When the Supreme Court agreed to hear the case in February, the justices ignored whether the law violated Smith’s free exercise of religion. Instead, the court said it would look at the dispute from a freedom of speech perspective and decide whether to apply the Public Accommodations Act “to compel an artist to speak or to remain silent.” “violates the free speech clause of the First Amendment.

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Why Jim Obergefell Isn’t Celebrating the Senate Same-Sex Marriage Bill

In court, Wagoner said the law compelled speaking in violation of the First Amendment.

She said her client believed that “opposite-sex marriage honors scripture and same-sex marriage contradicts it.” She said the state could interpret its law to allow speakers who serve everyone to decline specific projects based on their message. Such a move, she argued, would end status discrimination without coercing or suppressing speech. “The art is different,” Wagoner said.

Twenty states weighed in favor of Smith in the friend of court briefs. They said they have public accommodation laws on the books, but their laws exempt business people who make a living by creating custom art.

Smith says she wrote a webpage explaining that her decision was based on her belief that marriage should be between a man and a woman. But she has yet to release the statement because she fears she would violate the law’s ‘publication clause’ which prohibits a company from publishing any communication indicating that a public hosting service will be denied because of the orientation. sex, Wagoner claimed in court. papers.

Smith lost his case in the lower court. The United States 10th Circuit Court of Appeals held that while diversity of faith and religious practice “enriches our society”, the state has a compelling interest in “protecting its citizens from the harms of discrimination”.

Conservatives on the current court are sure to consider the dissent written by Judge Timothy Tymovich.

“The majority,” he wrote, “takes the remarkable – and novel – position that the government can force Ms. Smith to produce messages that violate her conscience.”

“Taken to its logical end,” he concluded, “government could regulate the messages communicated by all artists.”

Colorado Solicitor General Eric Olson argued in court papers that the law does not regulate or compel talk. Instead, he said, it regulates commercial conduct to ensure that all customers have the opportunity to participate in daily commercial exchanges, regardless of their religion, race, disability or other characteristics. . He said the “Colorado law targets ‘discriminatory sales business conduct’ and its effect on speech is ‘incidental at best’.

“The granting of such a discrimination license would allow all businesses that offer what they believe to be expressive services, from architects to photographers to consultants, to refuse to serve clients because of their disability. , sexual orientation, religion or race,” he said.

He added that the law is not intended to suppress any message Smith may want to express. Instead, 303 Creative is free to decide what design services to offer and whether or not to communicate its vision for marriage through Bible quotes on its wedding websites. But above all, the law obliges the company to sell any product or service that it offers to everyone.

Bonauto also warned of a slippery slope.

“Are you going to have the Protestant baker who doesn’t want to bake the First Communion cake?” said Bonauto. “Do you want the school photographer to have his business but not want to take pictures of certain children?”

Twenty-two other states support Colorado and have similar laws.

Biden’s Justice Department, which will participate in oral argument, supports Colorado, pointing out that public housing laws “ensure equal access to the commercial life of the nation by ensuring that all Americans can acquire the goods and services of their choice under the same conditions as offered to other members of the public.

A decision in the case is expected by July.

This story has been updated with additional details.

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