Artists can refuse business that would force them to violate their own beliefs, the Supreme Court ruled Friday in a decision that said the First Amendment trumps public accommodation laws.
The court ruled 6-3 in favor of a Colorado website designer who wanted to refuse to make wedding websites for same-sex couples, arguing doing so violated her freedom of expression as an artist. She said that ran afoul of her state’s public accommodation law, which bars businesses from refusing service to someone based on certain categories, including sexual orientation.
Justice Neil M. Gorsuch, in a forceful opinion for the majority, said she and other businesses that make creative work are acting as speakers and under the First Amendment can’t be ordered to produce work they disagree with.
“Colorado does not just seek to ensure the sale of goods or services on equal terms. It seeks to use its law to compel an individual to create speech she does not believe,” he wrote. “The First Amendment tolerates none of that.”
Justice Sonia Sotomayor, writing the dissent for the three Democrat-appointed justices, called the ruling an unprecedented attack on LGBTQ rights, reversing the trail the court blazed when it established a national right to same-sex marriage and extended workplace protections based on sexual orientation.
“Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities,” she said. “New forms of inclusion have been met with reactionary exclusion. This is heartbreaking.”
The case turned on whether creative businesses are “speaking” when they take a job for clients or whether they are providing a service.
Website designer Lorie Smith said her websites are speech, and so her decisions about what websites to make are covered by the First Amendment.
Colorado said that under its public accommodation law, which has been the subject of previous Supreme Court challenges, once she provided a service for some, she couldn’t refuse others because of their message.
Either state officials or private citizens can sue under the law. A violation can impose a number of penalties, including a $500 fine, mandated educational courses and state compliance reporting.
Justice Gorsuch said public accommodation laws have done great things for civil rights. But he said there are limits.
“When a state public accommodations law and the Constitution collide, there can be no question which must prevail,” he wrote, warning if the court had ruled the opposite way, the government could “force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty.”
He envisioned a time when the government could force a Muslim filmmaker to produce a video with a Zionist message, or an atheist muralist compelled to create artwork celebrating “Evangelical zeal.”
Ms. Smith had avoided entering the wedding website design business for fear of being forced to handle same-sex requests. On Friday, after the ruling, she said she will start.
“It’s never about the ‘who.’ It’s about the ‘what,’” Ms. Smith said.
It’s not the first time the state’s law has come under scrutiny from the high court.
Five years ago, the Supreme Court weighed 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 percolated in the years since without further guidance from the high court until Friday’s ruling in Ms. Smith’s case.
Kristen Waggoner, an attorney with Alliance Defending Freedom who represented both Mr. Phillips and Ms. Smith, said Friday’s ruling with help him as he continues to fight in court to create custom cake designs.
“States like Colorado cannot eliminate beliefs they do not like,” she said. “It’s a broad ruling, we are thrilled.”
Colorado Attorney General Phil Weiser said the decision will be used by businesses to claim free speech rights as an excuse to discriminate.
“Today’s sweeping decision threatens to destabilize our public marketplace and encourage all kinds of businesses — not just those serving weddings — to claim a First Amendment free speech right to refuse service to certain customers. A business may think that it can refuse to serve interracial couples because it believes interracial marriage is wrong. A payroll company may read today’s opinion as license to refuse service to women-owned businesses because the business owner believes women should not work outside the home. A bookseller of religious texts may believe it can refuse to sell books to a member of the Church of Jesus Christ of Latter-day Saints because he doesn’t believe it to be a legitimate religion. And so on,” he said.
President Biden also criticized the ruling.
“I’m deeply concerned that the decision could invite more discrimination against LGBTQI+ Americans,” he said. “More broadly, today’s decision weakens long-standing laws that protect all Americans against discrimination — including people of color, people with disabilities, people of faith, and women.”
The case is 303 Creative v. Elenis.
Correction: Due to an editing error, a previous version of this story misspelled the name of Christian website designer Lorie Smith.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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