WASHINGTON – The Supreme Court on Friday backed a web designer who wants to decline to create websites for same-sex weddings because of her religious beliefs – the latest legal setback for LGBTQ Americans from the high court.
Justice Neil Gorsuch wrote the opinion for a 6-3 majority. The case was decided on ideological lines.
“Laws along these lines have done much to secure the civil rights of all Americans,” Gorsuch wrote. “But in this particular case Colorado does not just seek to ensure the sale of goods or services on equal terms. It seeksto use its law to compel an individual to create speech she does not believe.”
In a case that could have profound implications for when businesses may turn away customers, the Colorado website designer argued a state anti-discrimination law couldn’t be used to compel her to develop same-sex wedding sites. It is the latest in a series of cases to reach the court pitting business owners against LGBTQ customers, although this one focused on free speech rights more than religion.
In a scathing dissent that she read from the bench, Justice Sonia Sotomayor said the case involves “a business open to the public [that] seeks to deny gay and lesbian customers the full and equal enjoyment of its services based on the owner’s religious belief that same-sex marriages are ‘false.'”
“The business argues, and a majority of the court agrees, that because the business offers services that are customized and expressive, the free speech clause of the First Amendment shields the business from a generally applicable law that prohibits discrimination in the sale of publicly available goods and services,” Sotomayor said. “That is wrong. Profoundly wrong.”
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A Colorado law bars public businesses such as hotels and restaurants from discriminating on the basis of sexual orientation – the same law that bars discrimination based on race and gender. But during oral arguments in December, the court’s conservative justices questioned whether a website designer is more like a retail business or more like an artist. Government is generally barred from compelling an artist – or anyone else – to convey a message that they disagree with.
Colorado, like 24 other states, prohibits discrimination based on sexual orientation by businesses.
Lorie Smith, the owner of 303 Creative, a Denver-based website design firm, said she didn’t object to serving LGBTQ customers – only same-sex weddings. Because Smith’s websites are custom creations they represent her speech as well as that of her customers, her lawyers argued. Smith was never approached by an LGBTQ couple seeking a matrimonial website site. Rather, she wanted the high court to invalidate the Colorado law before that could happen.
Critics said Smith’s argument would allow businesses to skirt anti-discrimination laws.
After a landmark victory in 2015 legalizing same-sex marriage and another win in 2020 that banned workplace discrimination on the basis of sexual orientation, the outlook for LGBTQ rights at the Supreme Court has dimmed in recent years – especially when those rights are in tension with the First Amendment’s protection of religious freedom.
The nation’s highest court sided with a Catholic foster care agency in Philadelphia in 2021 that declined to consider same-sex couples as clients. And in its decision last year to overturn Roe v. Wade, Associate Justice Clarence Thomas suggested it may also be time to “reconsider” same-sex marriage – a notion that prompted a political backlash and bipartisan legislation that requires states to recognize those marriages.
Colorado and its supporters have asserted that a win for Smith could have consequences beyond LGBTQ rights. If a business may decline to create a website for an LGBTQ couple based on an objection to same-sex marriage, they argued, couldn’t it also decline to make one for an interracial family?
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But during the arguments in December, several of the court’s conservative justices pushed back on that assertion of a slippery slope. Associate Justice Samuel Alito repeatedly referenced a line from the 2015 decision to legalize same-sex marriage in which the court said “many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.”
In other words, Alito asserted then, the majority in Obergefell v. Hodges recognized legalizing same-sex marriage would present a conflict with religious entities and individuals in a way that race and gender do not.
Those conflicts have repeatedly risen to the high court.
In 2018, a 7-2 majority of the justices sided with a Colorado baker who refused to create a custom wedding cake for a same-sex couple. But that decision was focused narrowly on how the state’s civil rights commission treated the baker, Jack Phillips. The court did not rule on broader questions about where to draw the line between a business owner’s religious freedom and LGBTQ rights.
In a twist in the present case, the Supreme Court declined to hear Smith’s religious freedom claim. Instead, it agreed last year to decide only whether Colorado’s anti-discrimination law ran afoul of her free speech rights. Many experts speculate that’s because the court’s conservatives don’t have the votes to overturn a controversial 1990 precedent, Employment Division v. Smith, that makes it harder to bring religious claims.
