The Supreme Court heard oral arguments Monday in a case about whether a custom webpage designer who disagrees with LGBT marriage can refuse to create a website for a same-sex couple if the service itself constitutes a form of compelled speech, diving into a range of wild and surprising hypothetical arguments by the justices.
The justices were hearing arguments in business owner Lorie Smith’s appeal seeking an exemption from a Colorado law that blocks discrimination based on sexual orientation and other factors after the U.S. Court of Appeals for the 10th Circuit ruled in favor of the state.
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Although the liberal justices leaned more in favor of Colorado’s arguments, the 6-3 conservative majority on the Supreme Court appeared to favor Smith’s argument that the First Amendment preempts Colorado’s law while presenting increasingly wild hypothetical arguments to drive their points.
“Based on today’s oral argument, it appears that a majority of the Supreme Court is willing to hold that expressive services provided by businesses do indeed enjoy First Amendment speech protection,” Dale Carpenter, a professor at SMU Dedman School of Law, told the Washington Examiner.
SUPREME COURT HEARS ARGUMENTS OVER DESIGNER’S REFUSAL TO CREATE FOR SAME-SEX WEDDINGS
In an effort to examine whether Smith’s burden is based on status- or message-based objections, conservative Justice Amy Coney Barrett asked about a couple’s engagement story in which two work colleagues, respectively in their own heterosexual marriage unions, decided to get divorced and marry each other and commissioned Smith to divulge their story on one of her custom webpages.
“We met at work, we were both married to other people— but what began as late nights at the office quickly turned into love. After six months, we realized we could be happy only with each other,” Barrett said, asking whether Smith would create a website for this type of couple. Her attorney, Kristen K. Waggoner, said she didn’t believe Smith would create that message.
Barrett also asked whether the First Amendment would still protect Smith if she wanted to decline to sell a ready-made website to a gay couple that an opposite-sex couple could buy. Smith’s counsel contends she doesn’t offer website templates for customers to buy, an argument distinct from the Masterpiece Cakeshop dispute with owner Jack Phillips, who also disagreed with same-sex unions but offered pre-made cakes.
When the high court ruled 7-2 in 2018 over Phillips’s case against Colorado’s law on religious grounds, it only found the Colorado Civil Rights Commission acted in a hostile way toward his faith and did not make any changes to the Colorado Anti-Discrimination Act.
Some of the court’s liberal justices raised questions Monday about race and how businesses might be able to discriminate on such matters if the high court ruled in favor of Smith.
“How about people who don’t believe in interracial marriage or people who don’t believe disabled people should be married?” Justice Sonia Sotomayor, an appointee of former President Barack Obama, asked. “Where’s the line?”
Other members of the court’s three-member liberal bloc chimed in with similar questions. Justice Ketanji Brown Jackson inquired about a racist photographer who wants to take photos of children with Santa Claus and could refuse to photograph any children of color.
“My photographer is speaking by being forced to create photos with minority children,” Jackson, an appointee of President Joe Biden, said in a hypothetical example.
Justice Samuel Alito, an appointee of President George W. Bush and one of six conservative members, countered Jackson’s argument with a hypothetical about a black Santa Claus who doesn’t want to pose with a child dressed in a Ku Klux Klan outfit.
Colorado Solicitor General Eric Olson argued such instances would not apply under the state’s law. The Biden administration and LGBT advocacy groups are backing Colorado.
Smith petitioned the Supreme Court after the 10th Circuit Court of Appeals upheld Colorado’s law and ruled against her. The case comes as the 6-3 conservative Supreme Court, which has often ruled in favor of religious liberty in other cases, has come under more scrutiny for how it will handle LGBT issues in the future.
But Waggoner told the Washington Examiner a ruling in favor of Smith would also defend objections of LGBT people in public commerce and denied that any ruling would result in the removal of Colorado’s law.
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“The problem isn’t the law itself. It’s how Colorado was applying the law to Lorie and to other artists by trying to compel their expression, and that’s simply not the way these public accommodation laws are meant to be enforced,” Waggoner said.
A ruling in 303 Creative v. Elenis is not expected until sometime next year.
