Supreme Court seems sympathetic to Colorado designer who opposes creation of same-sex marriage sites

Washington— The Supreme Court’s conservative bloc came out sympathetic Monday to a Colorado graphic designer who argues that a state law banning sexual orientation discrimination violates her free speech rights by forcing her to express a message that contradicts their intimate religious beliefs.

During oral argument in the case known as 303 Creative LLC v. Elenis, the court appeared to come closer to resolving a question it has left unanswered since 2018, when it narrowly ruled in favor of a Colorado baker who refused to bake a cake for a wedding. between people of the same sex: if states like Colorado can, by applying their anti-discrimination laws, force an artist to express a message with which they do not agree.

While the court’s conservative majority seemed set to conclude that Colorado cannot force web designer Lorie Smith to create websites for same-sex marriages, several acknowledged that there are differences between artists who convey a message and vendors selling goods and services in the market.

“The case comes down to a pretty narrow question, how do you characterize web designers? Are they more like restaurants, jewelers and tailors, or are they more like publishing houses and the like freedom of speech that are high on the other side?” asked Judge Brett Kavanaugh.

Judge Amy Coney Barrett told Kristen Waggoner, who argued the case on Smith’s behalf, that she was on the “steadiest ground” when speaking about the uniqueness of the websites Smith created and the work necessary for their creation.

“That’s the message,” Barrett said, after posing a hypothetical scenario to Wagoner that focused on whether Smith would design a site for a heterosexual couple getting married after divorcing other people (Wagoner said that Smith probably wouldn’t).

Supreme Court Gay Rights
Lorie Smith, a Christian graphic designer and web designer in Colorado, center, prepares to speak to supporters outside the Supreme Court in Washington on Monday, Dec. 5, 2022, after having her case heard by the court.

Andrew Harnik/AP

Smith, who started his business 303 Creative about a decade ago, says his religious beliefs prevent him from creating custom same-sex wedding websites.

But his stance could violate Colorado’s Public Lodging Law, which prohibits businesses open to the public from refusing service because of sexual orientation and from announcing their intention to do so. Smith, in turn, argues that the law violates her First Amendment rights since the state is forcing her to voice a message she disagrees with. Wagoner told the court that Smith’s speech was suspended for six years because she put plans to expand her business to create custom websites for weddings while her court battle unfolded.

The dispute before the Supreme Court pits the First Amendment’s right to free speech against LGBTQ rights and state laws designed to protect against discrimination, a conflict the court has previously been asked to resolve but has refused to resolve definitively.

“The complicating fact here is that this is not a hotel. This is not a restaurant. This is not a riverboat or a train,” Judge Clarence Thomas said. “I am interested in the intersection of public accommodation law and speech.”

The court’s three liberal justices — Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor — expressed deep concerns about whether Smith’s exemption from Colorado’s public accommodations law would open the door for companies denying services on the basis of race, ethnicity or disability if the court rules in his favour.

Jackson, the newest member of the Supreme Court and the first black female justice, wondered if a photographer seeking to portray Christmas scenes from the movie “It’s a Wonderful Life” could limit his photography to white children.

Sotomayor echoed this premise: “What about people who don’t believe in interracial marriage and people who think people with disabilities shouldn’t get married?”

They also questioned Wagoner on whether the websites should be considered Smith’s talk or that of his customers.

“I keep looking at all the mockups and they all relate to what [a couple] done,” Sotomayor said, referring to examples of Smith’s work. “I don’t get it, how’s your story? It’s their story.”

Waggoner, who heads the Alliance Defending Freedom group, replied that the speech is still Smith’s, likening his service to the work of a newspaper editor or a ghostwriter: “What matters is the objection that ‘the speaker is being asked to create… If you don’t think they should tell their story, and what they’re asking you to do is tell their story, then you don’t have to do it.”

But several conservative justices have sought to highlight the distinctions between message-based and status-based objections.

“We have a person who says she will sell and sell to everyone. All kinds of websites. But she won’t sell a website that requires her to express an opinion about marriage that she finds offensive to her religious beliefs,” Gorsuch said. . “What is the difference between the two cases? I have difficulties to understand.

Gorsuch had offered a hypothetical scenario to Colorado Solicitor General Eric Olson about a freelance writer who refuses to write speeches or press releases for clients of a different religion, asking how that scenario differs from the case. of Smith.

Olson, however, said that “the company has chosen to say that it will provide marriage websites in general…here it excludes a service to someone based on” their sexual orientation, regardless of the content of the website.

But Gorsuch noted that both parties stipulated several facts in the case, including that Smith creates custom and unique websites, and that she serves clients from all walks of life.

Smith insists she makes distinctions based on the message requested, not the person requesting it. If, for example, a wedding planner asks her to create a website for a same-sex wedding, Smith will always oppose the request because she believes marriage is between a man and a woman.

“It’s their religious belief. You can’t change their religious belief, can you? You protect religious beliefs under the law, can you? That’s one of the characteristics protected,” Gorsuch said.

During further questioning, Olson added that “the company would refuse to provide the same identical speech to a customer solely on who they are,” in violation of Colorado’s public lodging law.

The Supreme Court last faced a case at the crossroads of the First Amendment and LGBTQ rights in 2018, in the dispute involving Jack Phillips, a baker, owner of Masterpiece Cakeshop in Lakewood, Colorado. He argued that the state’s public accommodations law requiring him to create a cake for a same-sex wedding would violate his right to free speech and religious freedom.

The Supreme Court narrowly governed for Phillips, finding that the Colorado Civil Rights Commission acted with hostility toward his sincere religious beliefs. But he left unanswered whether states like Colorado can, through their anti-discrimination laws, compel an artist to voice a message they disagree with.

Smith’s case could now be the way to solve this problem. In February, the high court agreed to hear Smith’s case, narrowing the issue to the issue of free speech.

Twenty Republican-leaning states signed a friend of the court brief supporting Smith, telling the court that their interpretation of public accommodations laws shows how to balance protecting artists’ speech with allowing objections based on messaging and prevention of discrimination in the marketplace.

But Colorado officials defending the law argued it was necessary to ensure customers can participate equally in the market. Adopting Smith’s position, Attorney General Phil Weiser told the court in a filing, “would encompass not only objections by a business to serving certain customers motivated by sincere religious beliefs, but also objections motivated by ignorance, whim, bigotry, whim, etc. including pure expressions of racial, sexist or anti-religious hatred.”

Smith and Colorado warned that a decision in favor of their respective opponents could be detrimental and the consequences would be significant.

For Smith and the groups supporting her in the dispute, a ruling in favor of Colorado would force any performer or speaker to voice messages they disagree with, they said.

The Department of Justice supported Colorado in the case. Brian Fletcher, the deputy solicitor general who argued on behalf of Colorado, told the court on Monday that the hypothetical scenario presented by Jackson – of a photography business refusing services to black children – is the “implication” of the arguments. that Smith argues that the federal government is concerned.

Twenty-one Democratic-leaning states and the District of Columbia said in their own Supreme Court filing that siding with Smith could lead to members of protected groups being exposed to discrimination in a “broad swath” of the market. .

A Supreme Court decision is expected by the end of June.

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