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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