DECEMBER 5, 2022
The Supreme Court’s conservative majority seemed sympathetic Monday to a evangelical Christian graphic artist from Colorado who does not want to create wedding websites for same-sex couples, despite the state’s protective antidiscrimination law.
Those justices seemed amendable to businesswoman Lorie Smith’s argument that the state may not compel her to create speech that violates her religious belief that marriage is only between a man and a woman. But several appeared to be looking for ways to narrow their decision, saying both sides in the dispute agreed, for example, that not all wedding vendors should receive such exemptions.
Justice Samuel A. Alito Jr. said during oral arguments that a win for Colorado would mean some businesses that provide custom speech for customers could be forced to “espouse things they loath.”
The three liberal justices, in contrast, questioned whether the websites Smith would create are her own speech, or reflect simply the wishes of the couple who would hire her.
If the court ruled against Colorado, Justice Sonia Sotomayor said, it would be “the first time in the Supreme Court’s history” that it would allow a business open to the public “refuse to serve a customer based on race, sex, religion or sexual orientation.”
The case is something of a follow-up to the court’s decision in 2018, when it ruled narrowly for Colorado baker Jack Phillips, who refused to create a wedding cake for a same-sex couple. The court left undisturbed, however, Colorado’s law that forbids companies open to the public from denying goods or services to customers based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”
Graphic designer Smith says that law violates her deeply held religious views and free-speech rights by forcing her to create messages she does not believe.
Smith wants to create wedding websites to tell “through God’s lens” the stories of heterosexual couples. And she wants to be able to explain to same-sex couples on her 303 Creative LLC website that she will not create such platforms for them.
The court came to Monday’s argument equipped with hypotheticals — mall Santas who might refuse to take photographs with minority children, political speechwriters who might be forced to write for the opposition, newspapers or websites told they could not choose which wedding announcements to publish.
Justice Ketanji Brown Jackson brought up the mall Santa, wondering whether a photographer who wanted to create the ambiance of the movie “A Wonderful Life” might be able to exclude Black children.
Alito countered by conjuring up a Black Santa at the other end of the mall who wanted to be free to refuse a photograph to a child wearing a Ku Klux Klan outfit.
When Justice Elena Kagan said that Santa could refuse anyone wearing such an outfit, regardless of their race, Alito said it would be unlikely that his example would be a Black child.
A thread throughout the arguments was whether the refusal to provide wedding-related services for a same-sex couple could be compared to the same treatment of interracial couples.
Smith’s attorney Kristen Waggoner said it could not, and noted that in its decision finding a constitutional right to marriage for gay couples, the court noted that respect was due to those who disagreed with same-sex marriage as a matter of religious belief.
Colorado’s solicitor general Eric R. Olson said Smith was conflating speech with commerce.
A story would be free to sell only Christmas items if it wanted to, Olson said. But it couldn’t post a sign that said “No Jews allowed.”
At this point, Smith’s objections are theoretical. She has not created such her 303 Creative website and has not had to tell a same-sex couple that she would not work for them.
Two courts have ruled against Smith, saying Colorado has a compelling interest to require that businesses that are open to the public serve all of the state’s citizens.
When the high court took Smith’s case, it declined to hear Smith’s claim that Colorado’s law violates her religious freedom. Nor did it agree to hear her request to overturn Supreme Court precedent on neutral laws that might have implications for religious believers.
Instead, the justices propose to answer this question: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”
The case comes before a court much changed since the 2018 cake bakery decision, in which the court said the state enforced the law unfairly against Phillips because of religious bias on the part of some. (Phillips is currently in litigation over his refusal to create a cake for a transgender customer.)
Justice Anthony M. Kennedy, who wrote the opinion in Phillips’s case as well as the court’s landmark decisions on gay rights, has retired. Also gone is a dissenter in the Phillips case, Justice Ruth Bader Ginsburg, who warned against treating same-sex couples who marry differently from opposite-sex ones.
Kennedy and Ginsburg were replaced by more-conservative justices on a court that has been protective of free speech rights and increasingly sympathetic to challenges brought by religious interests.
In 1995, the court unanimously ruled — in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston — that a public accommodation law could not be used to compel organizers of Boston’s St. Patrick’s Day parade to admit a gay rights group. And Waggoner’s brief begins with the court’s famous 1943 decision that Jehovah’s Witnesses students in West Virginia could not be compelled to salute the flag or recite the Pledge of Allegiance.
Colorado responds that even if the websites Smith wants to produce are expressive, she is conflating free speech with selling a product.
The law’s application “does not turn on what a business chooses to sell,” Colorado said in its brief. “It simply requires that, once a business offers a product or service to the public, the business sells it to all.”
Moreover, allowing Smith to post on her website that she would not create websites for same-sex couples would amount “to an announcement of illegal discrimination similar to a ‘white applicants only’ sign.”
It is also not enough that other companies would provide similar marriage services to same-sex couples, the state says. The court made that clear decades ago, ruling against a motel that wanted to serve only White guests and a restaurant owner who said an integrated dining room would violate his religious beliefs.
Courtesy/Source: Washington Post