Conservatives on the Supreme Court appeared ready Monday to side with a website designer who refuses to build sites for same-sex weddings because of her religious beliefs, in a case that could broaden free speech exemptions to anti-discrimination laws nationwide.
Lorie Smith has asked the court to overturn lower-court decisions that found a Colorado anti-discrimination law would require her company, 303 Creative, to offer websites for same-sex weddings if she offered websites for weddings between a man and a woman.
During oral arguments Monday, conservatives on the court appeared sympathetic to Smith’s arguments, in the latest of several cases about the balance of religious liberty and individual freedom from discrimination.
Among the court’s majority of six conservative justices, Justices Neil M. Gorsuch, Amy Coney Barrett and Brett M. Kavanaugh pushed both sides of the case to answer whether the Colorado law similarly would require other businesses such as speechwriters to take on clients with messages they disagree with.
In an extended exchange with Eric R. Olson, the solicitor general for Colorado, Gorsuch compared Smith being required to design a website for anyone whose message she disagreed with — even if they were not same-sex couples — to writers being required to write a speech or press release for something they disagreed with.
“What [the website designer says] is ‘We will not sell to anyone, anyone, a message that I disagree with as a matter of religious faith,’” Gorsuch said. “Just as a speechwriter says for the press release or the freelance writer says, ‘I will not sell to anyone a speech that offends my religious beliefs.’”
Experts see the case as a follow to another free speech case out of Colorado, where a baker appealed a lower-court ruling that found he had discriminated against a same-sex couple for refusing to bake a cake for their wedding. In that case, the justices ruled in 2018 that Colorado’s civil rights commission process violated the baker’s constitutional rights but did not rule on the underlying First Amendment issues.
Since then, the court has gained an additional Republican-appointed justice and adopted a more muscular view of religious liberty and other individual rights in the public square.
Access to businesses
Olson and Brian Fletcher, arguing on behalf of the Justice Department, said that siding with Smith would broaden the scope of First Amendment objections to laws that require equal access to public accommodations such as businesses. That could allow discrimination anywhere a business can make an argument some portion of their service implies speech in support of a cause they do not support, they said.
“The Free Speech Clause exemption the company seeks here is sweeping, because it would apply not just to sincerely held religious beliefs like those of the company and its owner, but also to all sorts of racist, sexist and bigoted views,” Olson said.
The three justices on the liberal wing of the court pushed both sides to answer for the consequences of a ruling in the website designer’s favor, including allowing more race discrimination in public accommodations.
Justice Sonia Sotomayor said the case could be the “the first time in the court’s history” that public-facing businesses could deny service based on protected status like race, ethnicity or religion.
Sotomayor said Kristen Waggoner, the attorney for the designer, had conflated the creation of a website for a client with an endorsement of the message the client wants to convey.
“There is no line on race. There is no line on disability, ethnicity, none of the protected categories in a public accommodation law,” Sotomayor said.
Waggoner pushed back. “The Pulitzer Prize doesn’t go to the customer or to the subject, it goes to the photographer. And there’s a reason for that. That reason is because you are requiring that artists to speak a message, it is their work,” Waggoner said.
“But the First Amendment is broad enough to cover the lesbian website designer and the Catholic calligrapher,” Waggoner said. “The line is that no one on any side of any debate has to be compelled to express a message that violates their core convictions, because as this court found, it’s demeaning.”
Justice Elena Kagan also acknowledged later in arguments she had some problems with Colorado’s arguments in the case. But she also pointed out that the analysis of the case is meant to be fact specific “and we have a case without any of that in it.”
Fletcher responded that the case came to the court on a preliminary basis and it could toss the case without making a ruling on the underlying issues.
Smith appealed the ruling of the U.S. Court of Appeals for the 10th Circuit. Smith originally brought the case on both religious freedom and First Amendment issues, but the justices accepted only the First Amendment free speech portion of the case.
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