several conservative members Supreme Court Monday appeared to be sympathetic to the arguments of a graphic designer who sought to start a website business to celebrate weddings but didn’t want to work with same-sex couples.
The conservative judge looked at the case through a free speech lens and suggested that the government cannot compel artists or people who create custom products to express messages that violate their religious beliefs.
justice Neil Gorsuch Pointing out that the businessman’s objection will not be based on the status of the same-sex couple, but rather the message that the businessman does not want to send. The question is not “who” Gorsuch said, but “what.”
Justice Amy Coney Barrett told the designer’s lawyer that her “most compelling argument” was that the designer’s work was “bespoke”.
Justice Clarence Thomas addressed the history of the intersection of public accommodation law and the First Amendment. “It’s not a restaurant, it’s not a riverboat or a train,” he said.
On one side of the dispute is designer Lorie Smith, whose company is called 303 Creative. She said she hasn’t expanded further into wedding sites because she’s concerned about violating Colorado’s public accommodation laws. She said the law forced her to express information that was inconsistent with her beliefs. The state government and supporters of LGBTQ rights responded that Smith was simply seeking a license to discriminate in the marketplace. They say the law covers the actions of businessmen, not their words.
The case comes as supporters of LGBTQ rights fear a 6-3 conservative majority – just decided revoke A nearly 50-year-old abortion precedent – may set its sights on finally overturning a landmark 2015 opinion called Obergefell v Hodges This cleared the way for same-sex marriage across the country.
Thomas, for example, when Roe v. Wade was overturned, explicitly ask the court to retry Obergefell.
In court Monday, Justice Samuel Alito pointedly pointed out that Obergefell’s majority opinion carefully noted that there are “righteous” people who disagree with same-sex marriage.
Smith’s attorney, Kristen Waggoner, has come under fire from liberals on the bench for laying out a series of hypotheses designed to explore the wide-ranging ramifications the case could have if Smith wins. They suggested that other businesses could discriminate on the basis of race or physical disability.
Judge Ketanji Brown Jackson asked a photographer for a shopping mall business that sought to capture the feel of a bygone era and only wanted to photograph white children in Santa’s lap. “The company,” she says, “wanted to give their nostalgic take on Christmases of yesteryear by recreating classic Santa scenes from the 1940s and ’50s, and they’re doing it in sepia tones, and they’re customizing each one.” She urged photographers if they could draw a sign that said “only white” kids could participate.
Justice Sonia Sotomayor repeatedly asked “what are the boundaries” and asked those who were discriminated against because of interracial marriages or physical disabilities.
“What about people who don’t believe in interracial marriage?” Sotomayor said, “or about people who don’t believe people with disabilities should marry? Where’s the line?” she asked.
Judge Elena Kagan noted that two of her staff members are currently engaged. She said the wedding website consisted of pictures and links to hotels, which were not works of art. On the other hand, she wonders whether web designers can simply say “sorry” that same-sex marriage is not “my kind of” marriage without violating state anti-discrimination laws.
The House of Representatives is expected to pass a bills requiring states If Obergefell is overturned, another state’s legal marriage is recognized. The bill will then go to the White House to be signed by President Joe Biden.
“I’m concerned,” Mary Bonauto, a senior attorney for the Coalition Against Gay Defamation, told CNN. “What worries me is simply because the courts seem to be taking cases and changing the established law time and time again.”
Four years ago, the court heard a similar case involving a Colorado baker who refused to make a cake for a same-sex wedding, citing religious objections.
That 7-2 Ruling Favors BakersHowever, it is relevant to the specific circumstances of the case and is not broadly applicable to similar disputes across the country. Now, the justices are revisiting the same state’s anti-discrimination law. Under the law, businesses cannot deny services to individuals because of their sexual orientation.
Smith said she was willing to work with everyone, regardless of their sexual orientation, but declined to create a website celebrating same-sex marriage.
“The state of Colorado forced me to create custom, unique artwork that conveys and celebrates a different view of marriage that is at odds with my deep-seated beliefs,” Smith told CNN.
She reiterated her argument in an interview Monday night, telling CNN’s Laura Coates: “There are certain pieces of information that I cannot create no matter who asks for them.”
When the Supreme Court agreed to hear the case in February, the justices sidestepped whether the law violated Smith’s religious freedom. Instead, the court said it would look at the dispute through the lens of free speech and decide whether applying public convenience laws “to compel artists to speak or remain silent” violates the Free Speech Clause of the First Amendment.
Why Jim Obergefell Isn’t Celebrating the Senate Same-Sex Marriage Bill
In court, Wagner said the law works to enforce speech that violates the First Amendment.
She said her client believes that “hetero-sex marriage honors the scriptures, while same-sex marriage contradicts it.” She said the state could interpret its laws to allow speakers who serve everyone to decline specific projects based on their message. Such a move, she argues, would stop identity discrimination without coercing or suppressing speech. “Art is different,” Wagner said.
Twenty states weighed in favor of Smith among friends of court briefings. They say they have public accommodation laws on their books, but their laws exempt businessmen who make a living creating custom art.
Smith said she wrote a web page explaining that her decision was based on her belief that marriage should be between a man and a woman. But she has yet to issue a statement because she fears violating the law’s “publishing clause,” which prohibits companies from publishing any communications that indicate that public accommodation services will be rejected based on sexual orientation, Wagner claimed in court documents.
Smith lost the case in lower court.tenth place U.S. Circuit Court of Appeals While diversity of belief and religious practice “enriches our society,” the state has a pressing interest in “protecting its citizens from the harm of discrimination.”
Conservatives on the current court will surely study the dissent written by Justice Timothy Tymovich.
“The majority,” he wrote, “take the compelling and novel position that the government may compel Ms. Smith to publish information that goes against her conscience.”
“Logically,” he concludes, “the government can regulate the message that all artists convey.”
Colorado Attorney General Eric Olson argued in court papers that the law does not regulate or enforce speech. Instead, he said, it regulates business practices to ensure that all customers have the ability to participate in day-to-day business transactions, regardless of religion, race, disability or other characteristics. “Colorado law targets ‘discriminatory selling of business practices,’ and its effect on expression is ‘at best incidental,'” he said.
“Granting such a license to discriminate would allow all businesses that provide services they deem expressive, from architects to photographers to consultants, to deny services to clients because of disability, sexual orientation, religion or race,” He says.
He added that the law was not designed to suppress any message Smith might have wanted to express. Instead, 303 Creative is free to decide which design services to offer and whether to communicate its vision for marriage through Bible quotes on its wedding website. But crucially, the law requires a company to sell any product or service it offers to everyone.
Bonauto also warns of slippery slopes.
“Do you have Protestant bakers who don’t want to make a First Communion cake?” Bonotto said. “You want school photographers to have their business, but they don’t want to take pictures of certain kids?”
Twenty-two other states sided with Colorado and enacted similar laws.
The Biden Justice Department, which will participate in oral arguments, supported Colorado, emphasizing that the public convenience law “guarantees equal access to the commercial life of the state by ensuring that all Americans have access to any products and services of their choice on the same terms and conditions as they do now. available to the rest of the public.”
A decision in the case is expected by July.
This story has been updated with more details.