Supreme Court seems to side with web designer opposed to same-sex marriage

The Washington Post / Robert Barnes

12:11 JST, December 6, 2022

WASHINGTON – The Supreme Court’s conservative majority seemed sympathetic Monday to an evangelical Christian graphic artist from Colorado who does not want to create wedding websites for same-sex couples, despite the state’s protective anti-discrimination law.

Hypotheticals about mall Santas who are Black, interracial marriage and “reeducation programs” for those who violate public-accommodation laws filled a sometimes testy hearing that lasted more than two hours. It was the court’s latest examination of the clash between laws requiring equal treatment for the LGBTQ community and those who say their religious beliefs lead them to regard same-sex marriages as “false.”

The case, 303 Creative LLC v. Elenis, comes amid rising public and political approval of gay marriage, and as Congress is on the cusp of passing legislation that would protect such unions in the event the Supreme Court backs away from the constitutional right it established in 2015.

At the same time, the Supreme Court has grown even more protective of religious and free speech rights. The court’s six conservative justices seemed amenable to business owner 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.

Several of the justices 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 be allowed to deny service to same-sex couples.

But the conservative justices also saw danger in Colorado’s enforcement of the law. Justice Samuel Alito imagined a company that offered to write custom wedding vows or toasts. “Can they be forced to write vows or speeches that espouse things they loathe?” he asked.

The three liberal justices, in contrast, questioned whether the websites Smith would create would be her own speech or would simply reflect the wishes of the couples who hired her.

Justice Sonia Sotomayor recalled that the court in the past had required motels to open their doors to Black customers and that – in another long-ago case – a restaurant owner proposed to serve Black customers only from a takeout window because he said his religious beliefs did not countenance integration.

“What you’re saying is,” Sotomayor told Kristen Waggoner, the lawyer from the conservative Alliance Defending Freedom representing Smith, “I want to give gay couples a limited menu, not a full menu, just the way that luncheonette said.”

Later in the argument, Sotomayor said that if the justices found for Smith, it would be “the first time in the court’s history” that it allowed a commercial business open to the public to say it could “refuse to serve a customer based on race, sex, religion or sexual orientation.”

Waggoner said that the case was about whether the government can force Smith to create a message she does not believe, and that changes in public opinion about same-sex marriage are irrelevant.

“Cultural whims may shift, but the compelled speech doctrine should not,” Waggoner said. “Compelled speech crushes the speaker’s conscience, and it is the tool of authoritarianism, which is why this court has never allowed it.”

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.

Some of the court’s hypotheticals replaced sexual orientation with race.

Justice Ketanji Brown Jackson, the court’s first Black female justice, first brought up the mall Santa analogy, wondering whether a photographer who wanted to create the ambiance of the movie “It’s 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.

Colorado Solicitor General Eric R. Olson said children wearing such outfits are not protected under the law. Justice Elena Kagan said that Santa could refuse anyone wearing such an outfit, regardless of their race.

There was nervous laughter in the audience when Alito replied: “You do see a lot of Black children in Ku Klux Klan outfits, right? . . . All the time.”

At this point, Smith’s objections are theoretical. She has not created websites for heterosexual couples 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 in requiring 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 her 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 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.

But the Phillips case remains fresh in the minds of the justices.

Justice Neil Gorsuch told Olson that the state forced the baker to undergo a “reeducation training program” because of his disagreement with the government.

“It was not a reeducation program,” Olson replied.

“What do you call it?” Gorsuch asked.

Olson: “It was a process to make sure he was familiar with Colorado law.”

Gorsuch: “Someone might be excused for calling that a reeducation program.”

Gorsuch and Justice Brett Kavanaugh suggested that the two sides may not be so far apart. Gorsuch told Justice Department lawyer Brian Fletcher – the Biden administration is backing Colorado – that there was “radical agreement” about how to analyze the case.

“What would be impermissible is discrimination on the basis of status,” he said, meaning because the customers requesting the service were a same-sex couple. “But what would be permissible is refusing service because of a disagreement about views.”

Kavanaugh pointed out that in briefs, the two sides came to some agreement. He said Waggoner’s brief conceded that “hairstylists, landscapers, plumbers, caterers, tailors, jewelers and restaurants ordinarily wouldn’t have a First Amendment free speech right to decline to serve a same-sex wedding.”

On the other side, he said, artists and publishing houses have First Amendment rights. “The case comes down to a fairly . . . narrow question of, how do you characterize website designers?”

Waggoner said Smith was “creating speech.” “In those other examples, speech is not at issue, that is creating speech, announcing a wedding, or announcing anything,” she said. “And art is different.”

But Olson said Waggoner was conflating speech with commerce.

A store 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.”

Fletcher, too, said Waggoner’s test would lead to “extremely sweeping results.”

“It means that any provider of expressive services is entitled to put up a sign saying we do not serve people with particular characteristics whenever they believe that serving those people would change their message,” Fletcher said.

The case is 303 Creative LLC v. Elenis.