The Supreme Court is hearing a case that pits free speech against LGBTQ rights

Washington – The Supreme Court heard oral arguments Monday on an issue the justices have been asked to resolve before, considering a case pitting First Amendment free speech rights against LGBTQ rights.

Colorado is once again the battleground, this time in a case known as 303 Creative LLC v. Elenis. Graphic designer Lorie Smith, as well as bakers Jack Phillips and Aaron and Melissa Klein and florist Barronelle Stutzman before her is a Christian business owner who says her religious beliefs prevent her from creating custom websites for a same-sex wedding. But her position may run afoul of Colorado’s public accommodations law, which prohibits establishments open to the public from denying service based on sexual orientation and announcing their intent to do so.

Smith claims the law violates her First Amendment rights, saying the state is forcing her to express a message she disagrees with.

“If the government can censor and compel my speech, it can censor and compel anyone’s speech,” she told CBS News before the arguments. “We should all be free to live and work according to our deeply held beliefs.”

Smith started 303 Creative, her web design company, about a decade ago and insists that every site she creates is unique and one-of-a-kind. With plans to expand her business to create custom wedding websites, Smith does not want to design websites for gay weddings, and she wants to send a message to 303 Creative’s website revealing that she will not be doing it.

Smith says she serves clients of all different backgrounds, and she insists she makes distinctions based on the message requested, not the person requesting it — an important distinction the judges explored Monday. For example, if a wedding planner asks Smith to create a website for a same-sex wedding, she will still object to the request.

“What’s unfortunate is that what I’m asking the court to protect is the right of everyone to speak freely,” Smith said. “This not only protects me, it protects the LGBT web designer who should not be forced to communicate messages that go against their deeply held beliefs, and the right to free speech is guaranteed to all of us.”

Monday’s arguments

The court’s three liberal justices — Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor — grilled Kristen Waggoner, Smith’s attorney, about whether the websites should be considered the speech of Smith or her clients, and whether other businesses should be allowed to refuse service because of race, ethnicity or disability, if the court upholds her.

“I keep looking at all the models and everyone relates to what [a couple] do,” Sotomayor said, referring to examples on Smith’s websites. “I don’t understand, how is this your story? It’s their story.”

Waggoner, who heads the group Alliance Defending Freedom, responded that the speech is still Smith’s, comparing her service to the work of a newspaper editor or ghostwriter: “What matters is what the objection is that the speaker is being asked to create . .. 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.”

Judge Neil Gorsuch posed a hypothetical to Colorado Attorney General Eric Olson about a freelance writer who refuses to write speeches or press releases for clients of a different faith, asking whether that should be allowed and how that scenario differs from Smith’s case.

“We have a person who says she will sell and is selling to everybody. All kinds of sites. But she won’t sell a site that requires her to express a view on marriage that she finds offensive to her religious beliefs, Gorsuch said. “What is the difference between the two cases? I find it difficult to understand.”

Weiser responded that “the company has chosen to say that they will generally provide wedding websites … here they are excluding a service to someone based on” their sexual orientation, regardless of the website’s content.

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

In further questioning, Olson added that “the company would refuse to give the same identical speech to a customer solely on who they are,” in violation of the law.

A known problem

The Supreme Court last faced a case that sat at the intersection of the First Amendment and LGBTQ rights in 2018, in a dispute involving Phillips, who refused to make a cake for a same-sex wedding a decade ago. The baker, who owned Masterpiece Cakeshop in Lakewood, Colorado, argued that the state’s public accommodations law requiring him to make a cake for a same-sex wedding would violate his rights to free speech and freedom of religion.

The Supreme Court narrowly guided for Phillips, finding that the Colorado Civil Rights Commission acted hostile to his sincerely held religious beliefs. But it left unanswered the question of whether states like Colorado, by applying their anti-discrimination laws, can force an artist to express a message they disagree with.

Smith’s case could now be the vehicle to solve this problem.

Supreme Court Gay Rights
Web designer Lorie Smith is shown in her office Monday, Nov. 7, 2022, in southwest Littleton, Colorado.

David Zalubowski / AP

“No one should be forced to create artwork, customized expression that goes against the core of who they are and what they believe in. And that’s what Colorado is doing,” she said.

Smith filed a lawsuit in 2016 to block enforcement of the state’s public accommodations law against her. A federal district court sided with Colorado, and a divided panel of the U.S. Court of Appeals for the 10th Circuit affirmed, concluding that the law is narrowly tailored to Colorado’s compelling interest in ensuring equal access to publicly available goods and services.

Chief Justice Timothy Tymkovich, dissenting, said the state law coerced and suppressed Smith’s speech and violated her right to the free exercise of religion.

“Although I loathe to refer to Orwell, the majority opinion supports significant government interference in matters of speech, religion, and conscience,” he wrote.

Smith appealed to the Supreme Court in September 2021, asking the justices to determine whether using an anti-discrimination law like Colorado’s to compel an artist to speak, contrary to their religious beliefs, violates the free speech or free exercise provisions of the First Amendment.

The High Court agreed in February to hear Smith’s case, but limited the issue to the free speech issue.

Waggoner, Smith’s attorney, told CBS News ahead of Monday’s arguments that narrowing the issue allows the Supreme Court to “more easily get to the heart of the matter” of whether the government can force people to say things they don’t believe.

“No one should be forced to express anything that violates their beliefs on any subject,” she said. “Speakers don’t lose their rights just because they’re trying to make a living.”

Waggoner, who also argued Phillips’ case five years ago, noted that public accommodation laws and the First Amendment have “existed side by side for many years,” with speakers’ rights being protected.

Twenty Republican-leaning states signed an amicus brief supporting Smith, telling the court that their interpretation of public accommodation laws shows how to strike a balance between protecting artists’ speech by allowing message-based objections and preventing discrimination on the marketplace.

“Never in our history has the government actually coerced ideological, political or religious speech, ever,” Wagoner said. “That would be the first time.”

But Colorado officials defending the law argue it is necessary to ensure customers can participate equally in the marketplace. Adopting Smith’s position, Attorney General Phil Weiser told the court in one case, “would include not only a business’s objections to serving certain customers motivated by sincerely held religious beliefs, but also objections motivated by ignorance, caprice, bigotry, capriciousness and more — including pure expressions of racial, sexist or anti-religious hatred.”

The state also argues that allowing a business to refuse service would break with the nation’s long tradition of protecting customers’ ability to purchase goods and services regardless of religion, race, disability and other protected characteristics.

The Biden administration is backing Colorado in the dispute, telling the Supreme Court that the First Amendment does not entitle Smith to a categorical exemption from a law protecting against discrimination.

“Public accommodation laws therefore sometimes inadvertently require owners of expressive businesses to act in a manner inconsistent with their deeply held beliefs,” the Justice Department said in a filing with the court. “However, under this Court’s precedent, these incidental burdens are a permissible—indeed, uncontroversial—result of a decision to offer expressive goods or services to the public.”

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

For Smith and groups supporting her in the dispute, a ruling in favor of Colorado would force any artist or speaker to express messages they disagree with, they say.

“Many [of these laws] have political ideology, political beliefs, as a protected class, meaning a Democrat has to write a slogan for a Republican, or a Muslim might have to write something for an evangelical church,” Wagoner said. “It really transcends the issue of marriage , and we hope that the Court will reaffirm a very basic principle that free speech is for everyone.”

Colorado, she said, takes the position that “they have the power to force an artist to create a customized expression, and it should deeply concern all Americans that a government would be able to punish those with whom it disagrees with because it disagrees with their view on an issue.”

But Weiser and states that support Colorado warn that a decision in favor of Smith would open the door to more discrimination.

“Every day, Coloradans buy the goods and services they need from businesses that open their doors to the public. Many of these goods and services have deep meaning for their buyers: flowers for a spouse’s funeral, family photos to celebrate a baby’s arrival, a tailored suit to start a new job,” he told the court. “These customers don’t look, love or worship the same. But they all expect to participate in the public marketplace as equals. A company that rejects these customers because of who they are hurts them as they seek to express their sorrow, mark. their joy and improve their lives.”

Twenty-one Democratic-leaning states and the District of Columbia said in their own case to the Supreme Court that siding with Smith could expose members of protected groups to discrimination in a “wide swath” of the marketplace.

They wrote: “There are many examples of companies that could refuse to provide a service to customers based only on the companies’ objections to some ‘message’ which at its core depends only on the identity of those customers: A bakery whose owner was against mixed-race relations might refuse to bake wedding cakes for interracial couples; a real estate agency whose owner opposed racial integration might refuse to represent black couples seeking to buy a home in a predominantly white neighborhood; or a portrait studio whose owner opposes interracial adoption, could refuse to take pictures of white parents with their black adopted children.”

A decision from the Supreme Court is expected at the end of June.

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