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She won’t do gay weddings, and she’s headed to high court

As Congress pushes legislation to protect same-sex marriage, the justices will consider if a website designer can decline custom website services to LGBTQ couples.  

WASHINGTON (CN) — Only four years after it punted a central question at the intersection between speech and discrimination, the Supreme Court aims to answer what is more important: artistic freedom or public accommodation laws. 

The case on the high court’s docket on Monday comes from Lorie Smith, a website designer who does not want to create wedding websites for same-sex couples. Smith says doing so would violate her Christian beliefs that marriage is only between one man and one woman. But Smith also lives in Colorado, putting her in conflict with the state's public accommodation laws that say that Smith must provide her services to the public equally.

The case overview sounds familiar because the Supreme Court decided a very similar case in 2018. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the justices said Colorado's civil rights commission violated the First Amendment rights of a wedding cake maker who refused to make a cake for a same-sex couple. Finding that religious rights need the same protections as LGBTQ people, the court said the cake maker did not receive equal treatment under Colorado’s law. 

While the cake maker got a majority of the justices to agree that the civil rights commission’s actions were a violation of his rights, there was not a majority of justices to say requiring him to make a cake for a same-sex couple was a violation of his rights. Now the court is doubling back to answer this question. 

Complexities within Smith’s case may complicate the justices ruling in this case. For instance, it's not clear whether a couple has actually requested this service from Smith. Smith filed her suit under the assumption that the state would treat her similarly to other religious speakers. After her suit already began, a couple allegedly requested a website contrary to her views. The federal government, which will be arguing in favor of Colorado, claims Smith’s case presents a preenforcement challenge that the justices shouldn’t entertain to answer a question of this importance. 

Smith claims she can only make websites that align with her views but argues she can still serve same-sex couples as long as they do not make a request contrary to her beliefs. 

“The question is always what message will be expressed,” Kristen Waggoner, an attorney with the Alliance Defending Freedom, wrote in a brief for Smith. “If a client who identifies as gay asked her to design graphics for his animal rescue shelter or to promote an organization serving children with disabilities, Smith would happily do so.”

Wagoner says the First Amendment protects artists’ rights to decide how they speak. 

“Smith will decline any request — no matter who makes it — to create content that contradicts the truths of the Bible, demeans or disparages someone, promotes atheism or gambling, endorses the taking of unborn life, incites violence, or promotes a concept of marriage that is not solely the union of one man and one woman,” Waggoner wrote. 

Colorado contends that its public accommodations law — known as the Colorado Anti-Discrimination Act — does not regulate what businesses sell. Rather it protects against sales discrimination by requiring businesses to sell their products equally. 

“The company can define its service however it wants — including offering only websites that include biblical quotes describing marriage as the union of one man and one woman,” Colorado Solicitor General Eric Olson wrote in the state’s brief. “But the company must sell whatever it offers to customers regardless of their race, religion, sexual orientation, or other protected characteristic.” 

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Colorado claims Smith misunderstands how the public accommodations law works. It regulates sales, Colorado argues, not the products or services sold. Colorado says Smith can choose to offer websites only with its own design including biblical passages stating that marriage is a union of one man and one woman. What Smith can not do, it says, is offer custom wedding websites for some couples but not others. 

“The Act just requires that the Company allow potential customers to decide for themselves whether to buy such a website, rather than restrict sales based on a buyer’s protected characteristic,” Olson wrote. “If the Company turns down a customer because of who they are, that violates the Act.” 

Smith’s suit is six years in the making. After an intermission while the high court decided Masterpiece, a federal judge dismissed Smith’s suit. The 10th Circuit also ruled in favor of the state, finding that Colorado had a compelling interest in ensuring access to Smith’s services. Smith then turned to the Supreme Court

Religious and civil rights groups claim the exception to public accommodations laws that Smith is requesting from the court would be “so broad that it would swallow” anti-discrimination rules. 

“Because Petitioners’ proposed exception is spun from general free speech considerations, it is not limited to ‘expressive’ commercial conduct motivated by religious belief,” 30 religious and civil rights groups told the court in an amicus brief. “It will equally apply to a caterer who, for philosophical reasons, opposes marriages of same-sex couples, and a family photographer who, for cultural reasons, opposes cross-race adoption. Simply put, the logic of the proposed exception, if accepted, would mean that states cannot protect their residents by ensuring them equal access to the same array of goods and services that others in the state freely enjoy.” 

Congress members from both sides of the aisle filled briefs before the court in this case. A group of Republican House and Senate members urged the court to side with Smith. 

“This case is yet another example of states ‘wield[ing]’ public accommodation laws ‘as a sword’ to compel individuals to speak or stay silent on controversial issues,” the members wrote in their brief

In another brief, 137 members of Congress led by House Speaker Nancy Pelosi urged the court to rule in favor of Colorado. These members state that the government has an interest in eliminating discrimination. 

“Any interest served by creating the type of exemption sought by Petitioners is outweighed by the overriding federal interest in eradicating the dignitary and economic harms that flow from allowing discrimination in places of public accommodation,” the members wrote in their brief. 

If the court were to agree with Smith, federal nondiscrimination statutes — like Title VII of the Civil Rights Act and the Fair Housing Act — could be a risk. 

“It would be impracticable for this Court to accept Petitioners’ argument and attempt to draw broad-based distinctions between or otherwise define what is or is not an expressive profession,” the members wrote. “To attempt to draw such a line would disrupt the basic function of state and federal nondiscrimination laws by creating exemptions that state legislatures and Congress did not intend.” 

One day after the Supreme Court hears arguments in this case, the House of Representatives will vote on a bill that would codify same-sex marriage. The landmark bill passed by the Senate will recognize all marriages that were legal where they were performed. Interest from Congress in protecting same-sex marriage increased after Justice Clarence Thomas expressed interest in reexamining the court’s landmark ruling in Obergefell v. Hodges

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