The Supreme Court seems to sympathize with the Colorado designer who opposes the creation of same-sex wedding sites

The Supreme Court weighs in on LGBTQ+ rights


The Supreme Court evaluates the case that confronts freedom of expression with LGBTQ + rights

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Washington- The conservative bloc on the Supreme Court was sympathetic Monday to a Colorado graphic designer who argues that a state law banning discrimination based on sexual orientation violates her free speech rights by forcing her to express a message that conflicts with their intimate religious beliefs.

During oral arguments in the case known as 303 Creative LLC v. Elenis, the court seemed closer to resolving a question it hasn’t answered since 2018, when it narrowly ruled in favor of a Colorado baker who refused to bake a cake for a same-sex marriage: whether states States like Colorado can, by applying their anti-discrimination laws, force an artist to express a message with which they disagree.

While the court’s conservative majority seemed poised to rule Colorado can’t force web designer Lorie Smith to create same-sex wedding websites, several acknowledged that there are differences between message-delivering artists and marketers. who sell goods and services in the market.

“The case boils down to a rather narrow question of, how do you characterize website designers? Are they more like restaurants, jewelry stores, and tailors, or are they more like publishing houses and the other analogues of freedom of expression raised on the other side?” asked Judge Brett Kavanaugh.

Judge Amy Coney Barrett told Kristen Wagoner, who argued the case for Smith, that she was on “firmer ground” in speaking about the uniqueness of the websites Smith does and the work that goes into creating them. .

“It’s about the message,” Barrett said, after posing a what-if scenario to Wagoner centering on whether Smith would design a site for a heterosexual couple getting married after divorcing other people (Waggoner said Smith probably wouldn’t).

Supreme Court gay rights
Lorie Smith, a Christian graphic artist and website designer in Colorado, center, prepares to speak to supporters outside the Supreme Court in Washington on Monday, December 5, 2022, after the court heard her case.

Andrew Harnik/AP


Smith, who founded his company 303 Creative about a decade ago, says his religious beliefs prevent him from creating custom websites for a same-sex wedding.

But his stance could violate Colorado’s public accommodations law, which prohibits businesses open to the public from refusing service because of their sexual orientation and announcing their intention to do so. Smith, in turn, argues that the law violates her First Amendment rights since the state forces her to express a message she disagrees with. Wagoner told the court that Smith’s speech has gone cold for six years, as he has put plans to expand his business into creating custom wedding websites on hold while their court fight unfolded.

The Supreme Court dispute pits the First Amendment right to free speech against LGBTQ rights and state laws designed to protect against discrimination, a conflict the court has been asked to address before, but which has refused to resolve definitively.

“The tricky fact here is that this is not a hotel. This is not a restaurant. This is not a riverboat or a train,” Judge Clarence Thomas said. “I’m interested in the intersection of public accommodation law and discourse.”

The court’s three liberal justices, Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor, expressed deep concerns about whether Smith’s exemption from Colorado’s public accommodations law would open the door to businesses denying services based on race, ethnicity or disability if the court rules in your favor

Jackson, the newest member of the Supreme Court and the first black justice, wondered if a photographer looking to depict Christmas scenes from the movie “It’s a Wonderful Life” could limit his photography to white children.

Sotomayor echoed that premise: “What about people who don’t believe in interracial marriage and people who believe disabled people shouldn’t get married?”

They also questioned Wagoner on whether the websites should be considered Smith’s speech or that of his clients.

“I keep looking at all the models and they all relate to what I [a couple] is doing,” Sotomayor said, referring to examples of Smith’s work. “I don’t understand, how is this your story? It’s his story.”

Wagoner, who heads the Alliance Defending Freedom group, responded that the speech is still Smith’s, likening his service to the work of a newspaper editor or a ghostwriter: “What matters is what objection is being asked of the speaker who believes… If you don’t think they should tell their story, and what they’re asking you to do is tell their story, then you don’t have to.”

But several conservative justices tried to highlight the distinctions between message-based and status-based objections.

“We have a person who says he will and does sell to everyone. All kinds of websites. But he won’t sell a website that requires him to express an opinion on marriage that he finds offensive to his religious beliefs,” Gorsuch said. . “What is the difference between the two cases? I have a hard time understanding.”

Gorsuch had posed a hypothetical scenario to Colorado Attorney General Eric Olson about a freelance writer refusing to write speeches or press releases for clients of a different religion, and asked how that scenario differs from Smith’s case.

However, Olson said that “the company has chosen to say that it will provide wedding websites in general…here they are excluding a service for someone based on” their sexual orientation, regardless of the content on the website.

But Gorsuch noted that both sides have stipulated several facts in the case, including that Smith is creating unique, custom websites, and serving clients from different backgrounds.

Smith insists that he makes distinctions based on the message requested, not the person requesting it. If, for example, a wedding planner asks him to create a website for a same-sex wedding, Smith will still object to the request, as he believes the marriage is between a man and a woman.

“That is their religious belief. You can’t change your religious belief, right? You protect religious beliefs under the statute, right? That is one of the protected characteristics,” Gorsuch said.

In further questions, Olson added that “the company would refuse to provide the same identical pitch to a customer solely about who they are,” in violation of Colorado’s public accommodations law.

The Supreme Court last faced a case that found itself at the crossroads of First Amendment and LGBTQ rights in 2018, in the dispute involving Jack Phillips, a baker who owns Masterpiece Cakeshop in Lakewood, Colorado. He argued that the state’s public accommodations law requiring him to create a cake for a same-sex wedding would violate his rights to free speech and religious freedom.

the supreme court narrowly ruled for Phillips, finding that the Colorado Civil Rights Commission acted in hostility toward his sincerely held religious beliefs. But she left unanswered the question of whether states like Colorado can, by applying their anti-discrimination laws, force an artist to express a message he disagrees with.

Smith’s case could now be the vehicle to address that issue. In February, the high court agreed to hear Smith’s case, limiting the issue to the issue of free speech.

Twenty Republican-leaning states signed a letter of friend of the court supporting Smith, telling the court that his interpretation of public accommodation laws demonstrates how to strike a balance between protecting artists’ speech by allowing message-based objections and preventing discrimination in the marketplace.

But Colorado officials who defended the law argued that it is necessary to ensure that customers can fairly participate in the marketplace. Taking Smith’s position, Attorney General Phil Weiser told the court in a presentation“would encompass not only objections by a business to serving certain customers motivated by sincere religious beliefs, but also objections motivated by ignorance, caprice, bigotry, capriciousness, and more, including pure expressions of racial, sexist, or hate speech.” anti-religious.”

Both Smith and Colorado warned that a decision in favor of their respective opponents could be damaging and the consequences far-reaching.

For Smith and the groups backing her in the dispute, a ruling in Colorado’s favor would force any artist or speaker to express messages they disagree with, they said.

The Justice Department sided with Colorado in the case. Brian Fletcher, the assistant attorney general who argued on Colorado’s behalf, told the court Monday that the hypothetical scenario presented by Jackson, of a photography business refusing to serve black children, is the “implication” of the arguments Smith makes that the federal government cares about the government.

Twenty-one Democratic-leaning states and the District of Columbia said in their own presentation to the Supreme Court that siding with Smith could lead to members of protected groups being exposed to discrimination in a “broad swath” of the market.

A Supreme Court decision is expected by the end of June.

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