A lawyer for a Colorado graphic web designer says some Supreme Court justices appeared to understand that her client doesn’t discriminate against classes of people, only messages that oppose her Christian faith.
Kristen Waggoner, an attorney for the conservative Christian legal advocacy group Alliance Defending Freedom, argued for Lorie Smith before the Supreme Court this month in challenging Colorado’s public accommodations law, which the web designer says violates her free speech rights.
Ms. Smith, owner of 303 Creative, has refused to design websites for same-sex weddings.
“Lorie bases her decisions on what the message is she is asked to create and not who the person is and we heard some of the justices echo that as well,” Ms. Waggoner said in an interview with The Washington Times. “Colorado has relentlessly pursued Lorie and others who share her beliefs, and we are looking forward to free speech being vindicated for everyone.”
Ms. Smith has been caught up in the courts battling the law since 2016 as she has tried to get into the wedding website design business.
“This has certainly been a long journey. It’s been over six years now and I have always remained hopeful and as we walked out of the court after oral arguments, I remain hopeful,” Ms. Smith said in an interview with The Times. “I am looking forward to the court protecting everyone’s right to speak freely.”
At issue is Colorado’s public accommodations law, which bans businesses from treating people differently based on their sex, sexual orientation, race, disability, marital status or national origin.
The state of Colorado argued in its court filing that its public accommodation law is necessary to ensure all state residents can participate equally in the marketplace.
Colorado Solicitor General Eric Olson told the justices that the law only incidentally affects expression, saying that if the high court were to side with Ms. Smith, it would be giving businesses a “license to discriminate.”
“What this company seeks … is a total permission to turn away every same-sex couple,” Mr. Olson told the justices. “It is status-based discrimination they seek from this court.”
The justices spent hours in oral arguments grappling with how to balance free speech against LGBTQ rights. They struggled particularly with where to draw the line between an individual who offers services and an artist who produces custom works of expression.
“How do you characterize website designers? Are they more like the restaurants and the jewelers and the tailors, or are they more like, you know, the publishing houses and the other free speech analogs?” Justice Brett M. Kavanaugh asked.
The lengthy debate included interesting hypotheticals about the impact of ruling in Ms. Smith’s favor.
Justice Ketanji Brown Jackson asked if a photographer wanting to recreate a 1940s Santa theme could only photograph White kids with Santa. That prompted Justice Samuel A. Alito Jr. to ask if a Black Santa would be forced to take photographs with someone dressed in a Ku Klux Klan outfit.
“The justices are naturally testing the limits,” Ms. Waggoner told The Times. “Free speech is for everyone.”
A ruling is expected by the end of June. The case is 303 Creative LLC v. Elenis.
It’s not the first time Colorado’s law has come under scrutiny from the high court. Four years ago, the Supreme Court heard a case after Colorado’s civil rights commission penalized Jack Phillips, a baker, for declining to bake a wedding ceremony cake specifically for a same-sex couple.
The commission said Mr. Phillips was refusing a service, which violated Colorado’s public accommodation law. Mr. Phillips argued that his cakes were First Amendment speech and that forcing him to create one for a same-sex wedding violated his rights.
The Supreme Court ruled that the commission showed undue animosity toward Mr. Phillips and sent the case back to be reheard, but the justices shied away from a big ruling on constitutional principles.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
Please read our comment policy before commenting.