Court may back web designer nixing same-sex wedding sites
WASHINGTON — The Supreme Court's conservative majority seemed prepared Monday to rule that a graphic designer in Colorado has a First Amendment right to refuse to create websites celebrating same-sex weddings based on her Christian faith despite a state law that forbids discrimination based on sexual orientation.
But several justices leaning in that direction appeared to be searching for limiting principles so as not to upend all sorts of anti-discrimination laws.
They explored the difference between businesses engaged in expression and ones simply selling goods; the difference between a client's message and that of the designer; the difference between discrimination against gay couples and compelling the creation of messages supporting same-sex marriage; and the difference between discrimination based on race and that based on sexual orientation.
The bottom line, though, seemed to be that the court would not require the designer to create customized websites celebrating same-sex marriage despite the state anti-discrimination law.
The court's three liberal members expressed deep qualms about the damage a ruling in favor of the designer could do to efforts to combat discrimination.
The case, a sequel to one from 2018 involving a Colorado baker that failed to yield a definitive ruling, is expected to settle the question of whether businesses open to the public and engaged in expression can refuse to provide services to potential customers based on their religious or other convictions.
The case concerns Lorie Smith, who owns a design company that says it serves gay customers but intends to limit a proposed wedding-related service to celebrations of heterosexual unions. She argued that requiring her to provide those services to gay and lesbian couples violates her right to free speech.
Kristen Waggoner, a lawyer with Alliance Defending Freedom, a conservative Christian group that represents Smith, said her client serves all people, including those who identify as LGBTQ, but objects to producing designs that convey messages at odds with her faith no matter who asks her to create them.
A Colorado law forbids discrimination based on sexual orientation by businesses open to the public as well as statements announcing such discrimination. Smith, who has not begun the wedding business or posted such a statement for fear of running afoul of the law, sued to challenge it.
Eric Olson, Colorado's solicitor general, noted that Smith had never created a wedding website for anyone, gay or straight, and had sued preemptively, adding that the Colorado law was constitutional.
Lower courts have generally sided with gay and lesbian couples who were refused service by bakeries, florists and others, ruling that potential customers are entitled to equal treatment, at least in parts of the country with laws forbidding discrimination based on sexual orientation.
The owners of businesses challenging those laws have argued that the government should not force them to choose between the requirements of their faiths and their livelihoods. Their opponents say that businesses open to the public must provide equal treatment to potential customers.
The case before the justices, 303 Creative LLC v. Elenis, No. 21-476, is a free speech challenge that only incidentally concerns religion.
Smith's lawyers had also asked the Supreme Court to decide whether the Colorado law violated her right to the free exercise of religion and to consider whether to overrule an important precedent from 1990, Employment Division v. Smith.
In that case, the Supreme Court ruled that laws that are neutral and apply generally could not be challenged on the ground that they violated the First Amendment's protection of the free exercise of religion.
That decision, arising from a case involving the use of peyote in Native American religious ceremonies, is unpopular among conservative Christians, who say it does not offer adequate protection to religion, and with some of the justices. Last year, the court's three most conservative members — Justices Clarence Thomas, Samuel Alito and Neil Gorsuch — said it was time to overrule the 1990 decision.
In the new case from Colorado, though, the court limited its review to the question of whether the Colorado law violates the First Amendment's protection of free speech.
The precise question the justices agreed to decide in the new case is “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”