Conservative members of the Supreme Court on Monday signaled support for a Colorado web designer who claims the First Amendment shields her from having to provide services for same-sex weddings in violation of her conscience.
For more than two hours of argument, the court explored whether Colorado’s anti-discrimination law would violate the free speech rights of Christian web designer Lorie Smith by requiring that she create sites both for opposite-sex unions and gay weddings despite her religious objection to same-sex marriage.
Lawyers defending Colorado’s civil rights law faced difficult questions from the court’s conservatives, with several inquiries focused on how a win for Colorado could burden free expression either by forcing particular speech or by chilling it.
“Let’s just say that [The New York Times] for Gay Pride Month decides that it’s going to run — to promote and recognize same sex marriage — only same sex marriage announcements, turns away heterosexual announcements, not because it disparages or disagrees with opposite-sex unions but because it’s trying to promote something else,” said conservative Justice Amy Coney Barrett.
“Can it do that?” Barrett asked Colorado Solicitor General Eric Olson. “That’s a protected characteristic under the law.”
Olson, who said the question posed an unusual case, replied, “I think the answer is no.”
Smith, the web designer, filed a preemptive lawsuit in 2016 to block Colorado’s civil rights law from being enforced against her. The state’s statute, known as a public accommodation law, makes it illegal for businesses that serve the general public to discriminate on the basis of protected characteristics such as sexual orientation, with fines of up to $500 for each violation.
Smith argued Colorado’s law infringes on First Amendment free speech protections by compelling businesspeople to engage in speech that violates their beliefs. She lost two rounds in the lower courts, prompting her appeal to the Supreme Court.
Much of Monday’s argument concerned fine-grained legal distinctions without obvious answers. For instance, the justices grappled with whether a wedding website conveys the message of the web designer or the marrying couple; whether Smith’s refusal was based on customers’ message or same-sex status, or if the two were inextricably intertwined; and what degree of free-speech burden must be shown to qualify for an exemption from a public-accommodation law.
Yet some of the most revealing moments came during questions about the consequences of a ruling for either party in the case.
Justice Brett Kavanaugh, one of the court’s conservatives, suggested that a win for Colorado could lead to a scenario where a speechwriter for hire might be compelled to write a speech with a message that violates her “most deeply held convictions.”
In response, Deputy Solicitor General Brian Fletcher, who argued for the U.S. government in defense of Colorado’s law, said that “speechwriters aren’t likely to be public accommodations.”
Kavanaugh interjected, “Until they are after this case if you prevail. I mean, that’s what states could do.”
The other members of the court’s six-member conservative wing also appeared wary of applying Colorado’s public-accommodation law against Smith.
Olson, the lawyer for Colorado, did appear to gain a receptive audience from the court’s more liberal members in laying out his case.
“The company can choose to sell websites that only feature Biblical quotes describing a marriage as between a man and a woman, just like a Christmas store can choose to sell only Christmas related items,” Olson said of Smith’s company, 303 Creative. “The company just cannot refuse to serve gay couples as it seeks to do here, just as a Christmas store cannot announce ‘No Jews allowed.’ ”
The court’s three liberals, for their part, grilled lawyer Kristen Waggoner about the potential results of a ruling in favor of her client, Smith.
“How about [website designers] who don’t believe in interracial marriage? Or about people who don’t believe that disabled people should get married? Where’s the line?” liberal Justice Sonia Sotomayor asked. “I choose to serve whom I want. If I disagree with their personal characteristics like race, or disability, I can choose not to sell to those people this website because it’s my speech?”
Waggoner, of the Christian nonprofit group Alliance Defending Freedom, said Sotomayor’s scenario differed from the current case because Smith would welcome gay customers in other contexts outside of building websites celebrating gay marriage.
Under Supreme Court precedent dealing with this issue, Waggoner said, the justices should consider whether the speech creator is “otherwise serving those in the protected class in expressing other messages.”
“In the context of race,” she continued, “it’s highly unlikely that anyone would be serving Black Americans in other capacities but only refusing to do so in an interracial marriage context.”
One issue that drew only modest attention Monday dealt with the preemptive nature of Smith’s lawsuit, which she brought before getting her wedding web design business off the ground and prior to Colorado enforcing its public-accommodation law against her.
Justice Elena Kagan, one of the court’s liberals, said the lawsuit’s pre-enforcement status was a source of frustration.
“It really depends on the facts and on what exactly Miss Smith is being asked or compelled to do,” Kagan said. “And that matters, and we have a case without any of that in it. And what should I do with that?”
A decision in the case, 303 Creative LLC v. Elenis, is expected by this summer.
Updated at 3:08 p.m.