By Adam Liptak
The Supreme Court’s conservative majority seemed prepared earlier this week to rule that a graphic designer in Colorado has a free speech right under the First Amendment to refuse to create websites celebrating same-sex weddings because of her Christian faith, despite a state law that forbids discrimination based on sexual orientation.
Such a ruling would be the latest in a string of victories for religious people and groups, especially Christian ones, at a court that has shifted to the right in recent years. It would also chip away at the right to same-sex marriage established in 2015, which two current justices have urged their colleagues to reconsider.
Several justices leaning in favor of the designer appeared to be searching for limiting principles so as not to upend all sorts of anti-discrimination laws.
They explored the differences between businesses engaged in expression and ones simply selling goods.
“The case comes down to a fairly narrow question,” Justice Brett Kavanaugh said. “Are they more like the restaurants and the jewelers and the tailors,” he added, suggesting that those businesses are not engaged in protected speech, “or are they more like, you know, the publishing houses and the other free speech analogues?”
Other justices focused on the difference between a client’s message and that of the designer.
“That’s really at the heart of a lot of this,” Justice Neil Gorsuch said, referring to the question of whether the speech at issue was “expressing the maker’s point of view or the couple’s point of view.”
Still others asked whether there was a difference between discriminating against gay couples and refusing to create messages supporting same-sex marriage.
“It’s about the message and not about the sexuality of the couple,” Justice Amy Coney Barrett suggested.
And Justice Samuel Alito said there was a difference between discrimination based on race versus sexual orientation, asking whether “it’s fair to equate opposition to same-sex marriage with opposition to interracial marriage.” He noted that Justice Anthony Kennedy’s majority opinion establishing a constitutional right to same-sex marriage in 2015 in Obergefell v. Hodges said that honorable people opposed such unions on religious grounds.
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 gay rights and to efforts to combat discrimination.
“This would be the first time in the court’s history,” Justice Sonia Sotomayor said, that it may rule that “a commercial business open to the public, serving the public, that it could refuse to serve a customer based on race, sex, religion or sexual orientation.”
Barrett said that the line-drawing questions in the case were difficult and that where the court drew them would be consequential. “However we decide this case obviously applies to others,” she said.
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 violated her right to free speech.
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.
Kristen K. Waggoner, a lawyer with Alliance Defending Freedom, a conservative Christian group that represents Smith, said her client served all people, including those who identify as LGBTQ, but objected to producing designs that convey messages at odds with her faith, no matter who asks her to create them.
“She believes same-sex marriages to be false,” Waggoner said of her client.
Both sides seemed to agree that Smith was free to put a standard statement on all of her wedding websites along the lines of this one, proposed by Alito: “Made with love by Amber, who believes that a valid marriage is a union between one man and one woman.”
Eric R. Olson, Colorado’s solicitor general, said that was lawful so long as it was on every website, adding that “a website designer like that will lose a lot of opposite-sex couples as potential clients as well because they don’t want to be seen with that message.”
Alito said the basic concession was a significant one. “You’re making a tiny sliver of an argument,” he told Olson.
Justice Elena Kagan said she did not know how to think about a similar hypothetical situation that seemed to undermine some of the distinctions the court was drawing. What if, she asked, a web designer made the phrase “God blesses this union” a standard part of every wedding website.
Those identical words, Kagan said, could imply different messages in different contexts.
Waggoner, Smith’s lawyer, said “context changes meaning,” adding: “‘My body, my choice’ means something different to an anti-vaxxer or a pro-abortion proponent.”
Despite all of its complications, Monday’s 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.
Olson, Colorado’s solicitor general, noted that Smith had not turned down any prospective gay customers or faced punishment and had instead sued preemptively.
Kagan said that was a source of frustration.
“It really depends on the facts and on what exactly Ms. Smith is being asked or compelled to do, and that matters,” Kagan said. “And we have a case without any of that in it.”
Justice Ketanji Brown Jackson asked whether a shopping mall that wanted to mimic the atmosphere of the movie “It’s a Wonderful Life” could refuse to include children who were not white in its pictures with Santa.
“That may be an edge case,” said Waggoner, adding that under the First Amendment, “this court has protected vile, awful, reprehensible, violent speech in the past.”
Alito built on Jackson’s question, asking whether “a Black Santa at the other end of the mall” could refuse to be photographed “with a child who’s dressed up in a Ku Klux Klan outfit.”
Olson said such costumes are not protected by the Colorado law, and Kagan added it would presumably be “the same Ku Klux Klan outfit regardless whether the child was Black or white.”
Alito responded with apparent sarcasm. “You do see a lot of Black children in Ku Klux Klan outfits,” he said.