The conservative majority of the Supreme Court on Monday appeared poised to rule that a Christian web designer has a free speech right to refuse to work with same-sex couples planning to marry.
The justices heard arguments in the Colorado case that raised a conflict between the employer’s First Amendment rights and the state’s anti-discrimination law that gives clients the right to equal service without regard to race, religion, gender or sexual orientation.
The result could cut a loophole in the laws of California and 21 other mostly blue states that outright prohibit discrimination against LGBTQ customers.
However, several justices have expressed interest in finding a narrow provision that could strengthen First Amendment rights for some business owners, without creating a new, wide-ranging free speech loophole that would open the door to increased discrimination based on sexual orientation, race, gender, disability, or other status. Legally protected properties.
During more than two hours of arguing, the justices appeared divided along the usual ideological lines.
The case was brought by Laurie Smith, a web designer who is seeking to expand her business into weddings. But she sued the state of Colorado to obtain assurances that she did not need to work with a same-sex couple seeking such a wedding website.
Smith’s attorneys argued in their legal brief that she does not seek the right to discriminate against homosexuals in every case, but merely wants the right to avoid being required to — in her opinion — express support for same-sex marriage that is contrary to her religion.
She is “willing to create websites dedicated to anyone, including those who identify as gay, bisexual, or transgender,” they wrote, “provided their message does not contradict her religious views. But she cannot create websites that promote messages that contradict her religion, such as messages that condone violence or promote sexual immorality, abortion, or same-sex marriage.”
The three liberal justices largely rejected her suit, arguing for the principle of civil rights and equal treatment for all. They said the court should warn against granting a new constitutional right to discrimination.
“What is the exact limit” of the proposed freedom of expression right to denial of service, Judge Sonia Sotomayor asked? “What about people who don’t believe in interracial marriage or people who don’t believe that people with disabilities should marry?”
The liberal justices also questioned why a standard wedding website template—including details about the couple, event venue, nearby hotels, and gift registry—would be considered as expressing the views of the website designer, rather than the couple. Why do you say so? Justice Elena Kagan asked.
Smith’s lawyer argued that even if the same-sex couple’s website design was nearly identical to the one provided for the opposite-sex couple—with changes only to names and logistical details—the context would be different and thus force her client’s expression. Something you did not support.
“Context changes meaning,” said Christine Wagner, senior advisor at Alliance Defending Freedom.
The six conservatives said the First Amendment has long protected Americans from being forced to express their opinions or promote causes they disagree with. They said that principle could be extended to a website designer who says working to celebrate a same-sex wedding goes against her Christian faith.
Justices Neil M. Gorsuch and Brett M. Kavanaugh suggested the court could rule narrowly, but stick to the principle that people in business cannot be forced to promote messages they oppose.
“She’s willing to sell to everyone, but she’s not going to create a website that celebrates something that offends her religious beliefs,” Gorsuch said.
Kavanaugh said only a small number of companies could qualify for such an exemption. He said hairdressers, tailors, jewelers, caterers and restaurants probably wouldn’t qualify under the First Amendment’s free speech protections.
The issue, he said, “comes back to a rather narrow question, How do you distinguish website designers? Are they more like restaurants and jewelers and tailors, or are they more like a publishing house or other analogue of freedom of expression?”
Justice Amy Coney Barrett agreed that the right to free speech would protect the person who designs websites that celebrate weddings.
“Why isn’t speech forced?” I asked Eric Olson, Colorado’s attorney general, who has been advocating for the state’s anti-discrimination law.
Olson warned that giving Smith the ability to refuse all same-sex clients seeking her wedding services would create a “license” for discrimination.
He said companies are free to sell certain products and not others, but they may not discriminate against customers because of their race, religion or sexual orientation.
For example, a store that sells Christmas items doesn’t need to sell Hanukkah gifts either. But “the Christmas shop may not advertise ‘No Jews allowed’,” he said.
“The exemption from the free speech clause the company is seeking here is sweeping because it applies not only to sincere religious beliefs, like those of the company and its owner, but also to all kinds of racist, sexist and bigoted opinions,” he said. court.
Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr., who defected in 2015 when the court upheld the right to same-sex marriage, has regularly voted in support of religious freedom claims from conservative Christians.
Smith previously lost her case to a federal judge and the Tenth Circuit Court in Denver.
The justices voted in February to hear her appeal in 303 Creative vs.
A ruling is likely in June.
The Supreme Court has heard similar disputes in the past, mostly related to religious freedom claims. In none of these rulings has it determined that business owners with strong religious beliefs have a constitutional right to discriminate against same-sex marriages.
However, the current case is not based on religious freedom but only on freedom of expression.
In recent years, Alliance Defending Freedom, an advocacy group based in Arizona, has supported a series of lawsuits on behalf of Christians in business who refuse to participate in any same-sex weddings. They included a wedding cake baker, wedding photographer, florist, and now a website designer.
Four years ago, the court split over a similar case involving a wedding cake baker. Shortly before his retirement, Judge Anthony M. Kennedy spoke before the court in the Masterpiece Cakeshop case and said that the baker and his religious beliefs had been treated unfairly by the state civil rights commission.
But that was a narrow opinion that didn’t decide if the baker had free speech not to make a wedding cake for a same-sex couple.
Since then, Kavanaugh and Barrett have joined the court, creating a strong conservative majority.
Civil rights advocates fear that a ruling in favor of the right to discriminate in the new Colorado case could lead to further discrimination against LGBTQ clients.
“Each of us has the right to be treated as an equal member of our community when searching for goods or services in the commercial marketplace,” said Jennifer C. Bezer, chief legal officer at Lambda Legal in Los Angeles. “Any provision that allows our precious rights to free speech to be turned into tools of discriminatory exclusion would make a mockery of the Constitution’s promises of equality in public life. Depending on the outcome of this case, the door could be opened for escalation of discrimination, including in areas such as medical services, accommodation, and transportation.”