Washington — The Supreme Court’s conservative bloc appeared sympathetic Monday to a Colorado graphic designer who argues a state law prohibiting discrimination on the basis of sexual orientation violates her free speech rights by forcing her to express a message that contradicts her closely held religious beliefs.
During oral arguments in the case known as 303 Creative LLC v. Elenis, the court seemed to move closer to resolving a question it has left unanswered since 2018, when it narrowly ruled in favor of a Colorado baker who refused to make a cake for a same-sex wedding: whether states like Colorado can, in applying their anti-discrimination laws, compel an artist to express a message they disagree with.
While the court’s conservative majority appeared prepared to find that Colorado cannot force web designer Lorie Smith to create websites for same-sex weddings, several recognized that there are differences between artists who are conveying a message and vendors selling goods and services in the marketplace.
“The case comes down to a fairly narrow question of, how do you characterize website designers? Are they more like the restaurants and the jewelers and the tailors, or are they more like the publishing houses and the other free speech analogues that are raised on the other side?” Justice Brett Kavanaugh asked.
Justice Amy Coney Barrett told Kristen Waggoner, who argued the case on behalf of Smith, that she was on “strongest ground” when talking about the uniqueness of the websites Smith makes and work that goes into creating them.
“It’s about the message,” Barrett said, after posing a hypothetical scenario to Waggoner focused on whether Smith would design a site for a heterosexual couple getting married after divorcing other people (Waggoner said Smith likely would not).
Andrew Harnik / AP
Smith, who started her company 303 Creative roughly a decade ago, says her religious beliefs prevent her from creating custom websites for a same-sex wedding.
But her stance could violate Colorado’s public accommodation law, which prohibits businesses open to the public from refusing service because of sexual orientation and announcing their intent to do so. Smith, in turn, argues the law violates her First Amendment rights since the state is forcing her to express a message she disagrees with. Waggoner told the court that Smith’s speech has been chilled for six years, as she has put on hold plans to expand her business to create custom websites for weddings while her court fight played out.
The dispute before the Supreme Court pits the First Amendment right to free speech against LGBTQ rights and state laws designed to protect from discrimination, a conflict that the court has been asked to address before but has declined to definitively resolve.
“The complicating fact here is this is not a hotel. This is not a restaurant. This is not a riverboat or a train,” Justice Clarence Thomas said. “I’m interested in the intersection of public accommodation law and speech.”
The court’s three liberal justices — Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor — expressed deep concerns about whether exempting Smith from Colorado’s public accommodation law would open the door to businesses denying services on the basis of race, ethnicity or disability if the court rules in her favor.
Jackson, the newest member of the Supreme Court and the first Black female justice, wondered whether a photographer seeking to depict Christmas scenes from the film “It’s a Wonderful Life” could limit their photography to White children.
Sotomayor echoed that premise: “What about people who don’t believe in interracial marriage, and people who believe that disabled people shouldn’t get married?”
They also questioned Waggoner about whether the websites should be considered Smith’s speech or that of her clients.
“I keep looking at all of the mockups and all of them relate to what [a couple] is doing,” Sotomayor said, referring to examples of Smith’s work. “I don’t understand, how is this your story? It’s their story.”
Waggoner, who heads the group Alliance Defending Freedom, replied that the speech is still Smith’s, comparing her service to the work of a newspaper editor or ghostwriter: “What matters is what the objection is that the speaker is being asked to create … If you don’t believe they should be telling their story, and what they’re asking you to do is tell their story, then you don’t have to do that.”
But several conservative justices sought to highlight distinctions between objections based on message and status.
“We have an individual who says she will sell and does sell to everyone. All manner of websites. But she won’t sell a website that requires her to express a view about marriage that she finds offensive to her religious beliefs,” Gorsuch said. “What’s the difference between the two cases? I’m struggling to understand.”
Gorsuch had posed a hypothetical scenario to Colorado Solicitor General Eric Olson about a freelance writer who declines to write speeches or press releases for clients of a different faith, asking how that scenario is different from Smith’s case.
Olson, though, said “the company has chosen to say they will provide wedding websites generally … here they are excluding a service to someone based on” their sexual orientation, regardless of the website content.
But Gorsuch noted that both sides stipulated to several facts in the case, including that Smith is creating custom, one-of-a-kind websites, and she serves clients of all different backgrounds.
Smith insists that she makes distinctions based on the message requested, not the person requesting it. If, for example, a wedding planner asks her to create a website for a same-sex wedding, Smith will still object to the request, as she believes marriage is between one man and one woman.
“That’s their religious belief. You can’t change their religious belief, right? You protect religious beliefs under the statute, right? That is one of the protected characteristics,” Gorsuch said.
In further questioning, Olson added that “the company would refuse to provide the same identical speech to a customer solely on who they are,” in violation of Colorado’s public accommodation law.
The Supreme Court was last confronted with a case sitting at the crossroads of the First Amendment and LGBTQ rights in 2018, in the dispute involving Jack Phillips, a baker, who owned Masterpiece Cakeshop in Lakewood, Colorado. He argued the state’s public accommodation law requiring him to create a cake for a same-sex wedding would violate his right to free speech and religious freedom.
The Supreme Court ruled narrowly for Phillips, finding the Colorado Civil Rights Commission acted with hostility toward his sincere religious beliefs. But it left unanswered the question of whether states like Colorado can, in applying their anti-discrimination laws, compel an artist to express a message they disagree with.
Smith’s case could now be the vehicle for addressing that issue. The high court in February agreed to hear Smith’s case, limiting the question to the free speech issue.
Twenty Republican-leaning states signed on to a friend-of-the-court brief supporting Smith, telling the court that their interpretation of public accommodation laws demonstrates how to strike a balance between protecting artists’ speech by allowing message-based objections and preventing discrimination in the marketplace.
But Colorado officials defending the law argued it is needed to ensure customers can participate equally in the marketplace. Adopting Smith’s position, Attorney General Phil Weiser told the court in a filing, “would encompass not only a business’s objections to serving certain customers motivated by sincerely held religious beliefs, but also objections motivated by ignorance, whim, bigotry, caprice, and more — including pure expressions of racial, sexist, or anti-religious hatred.”
Both Smith and Colorado warned that a decision in favor of their respective opponents could be harmful, and the consequences wide-ranging.
For Smith and groups backing her in the dispute, a ruling in favor of Colorado would force any artist or speaker to express messages they disagree with, they said.
The Justice Department backed Colorado in the case. Brian Fletcher, the deputy solicitor general who argued in support of Colorado, told the court Monday that the hypothetical scenario presented by Jackson — of a photography business refusing service to Black children — is the “implication” of the arguments Smith is advancing that the federal government is concerned with.
Twenty-one Democratic-leaning states and the District of Columbia said in their own filing to the Supreme Court that siding with Smith could lead members of protected groups to be exposed to discrimination in a “broad swath” of the marketplace.
A decision from the Supreme Court is expected by the end of June.
