The Supreme Court grappled Monday with balancing free speech against gay rights, hearing a case involving a Colorado website designer who says she shouldn’t be compelled to violate the tenets of her faith by creating products for same-sex marriages.
The justices 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?” said Justice Brett M. Kavanaugh.
Web designer Lorie Smith in her challenge of Colorado’s pro-LGBTQ law is asking the Supreme Court to protect her First Amendment right not to be forced to work on something she opposes.
She says having to design websites for same-sex marriages goes against her Christian faith and forces her to speak a message she doesn’t agree with.
“The state forces Ms. Smith to create speech, not simply sell it,” said Kristen Waggoner, an attorney with Alliance Defending Freedom, the conservative legal advocacy group representing Ms. Smith.
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“She is being asked to shape her speech,” Ms. Waggoner argued, stressing that it violates Ms. Smith’s First Amendment rights.
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.
Ms. Smith would like to design wedding websites but says she can’t do so under the state’s law because she would be forced to also design same-sex wedding websites, which runs afoul of her faith.
It’s not the first time the state’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 undo animosity toward Mr. Phillips and sent the case back to be reheard, but the justices shied away from a big ruling on constitutional principles.
The issue has percolated in the years since without any further guidance from the high court, but Mr. Phillips’ name — and custom cakes — came up during oral arguments on Wednesday.
“One can view these websites, or last time around we had cakes, as either expressing the maker’s point of view or the couple’s point of view, and — and that’s really at — at the heart of a lot of this,” said Justice Neil M. Gorsuch.
He quizzed the attorneys about if the focus of the case should be on what the message conveys or about the status of the customer.
“The question isn’t who, but what?” he said.
Justice Clarence Thomas seemed skeptical of the state’s position against Ms. Smith, suggesting in his line of questioning that her business is different from other public services.
“This is not a hotel, this is not a restaurant, this is not a riverboat or a train. I’m interested in the intersection of public accommodations law and speech,” he said.
Ms. Smith’s case — and her website design business — gives the court a vehicle to finally square First Amendment rights with LGBTQ protections.
Ms. Smith is not the only one asking for the justices to step in and settle the matter.
Melissa and Aaron Klein have asked the Supreme Court to hear their case after the Oregon Bureau of Labor and Industries fined them $135,000 for refusing to make a same-sex wedding cake in violation of their religious beliefs. Their petition is currently pending before the high court.
States vary in their anti-discrimination laws. A large majority of states have some sort of public accommodation law, but not all of them specifically cover sexual orientation.
Ms. Smith launched her graphic and web design business, 303 Creative, in 2012, but has been hesitant to enter the wedding business due to Colorado’s law — especially after witnessing the state’s targeting of Mr. Philips.
During her six-year legal fight, she lost business, faced threats and saw her clients harassed.
She, like Mr. Phillips, says she has clients who are LGBTQ, but she won’t design custom artwork for them that violates her faith.
The state of Colorado, though, argued in its court filing that its public accommodation law is necessary to ensure all state residents can participate equally in the marketplace.
Eric Olson, Colorado’s solicitor general, told the justices that the state’s 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,” he said. “It is status-based discrimination they seek from this court.”
The Biden administration joined the legal fight, siding with Colorado.
Brian Fletcher, deputy solicitor general, said a business owner can’t base his or her services on the client’s status.
“Colorado is not asking Ms. Smith to speak messages,” he said.
The three Democratic-appointed justices appeared concerned that siding with Ms. Smith could allow discrimination against interracial couples and disabled couples.
Justice Ketanji Brown Jackson asked how Ms. Smith’s case would differ from a photographer who only wanted to take photographs of White children with Santa.
Justice Elena Kagan and Justice Sonia Sotomayor, meanwhile, focused on the wedding website business, noting most of the websites share stories about the couples — not about the website designer.
“It’s the story of the couple,” Justice Sotomayor said. “How is this your story? It’s their story.”
The case is 303 Creative LLC v. Elenis.
Correction: An earlier version of this story incorrectly reported the Colorado solicitor general’s arguments were made last week.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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