WASHINGTON — Conservative Supreme Court justices on Monday appeared sympathetic toward an evangelical Christian web designer’s bid to avoid working on same-sex weddings as they weighed the latest clash between religious conservatives and LGBTQ rights.
But after two-and-a-half hours of arguments that included a broad array of tough hypothetical questions directed at both sides, involving far-fetched scenarios like a "Black Santa" at a shopping mall refusing to serve children dressed in Ku Klux Klan outfits, it is unclear how exactly the court, which has a 6-3 conservative majority, will rule.
Lorie Smith, who opposes same-sex marriage on religious grounds and runs a business in Colorado designing websites, is seeking an exemption from a state law that outlaws discrimination on the basis of sexual orientation in public accommodations.
Smith sued the state in 2016 because she said she would like to accept customers planning opposite-sex weddings but reject requests made by same-sex couples wanting the same service. She argues that, as a creative professional, she has a free speech right under the Constitution’s First Amendment to refuse to undertake work that conflicts with her own views.
Civil rights groups say Smith is asking the conservative-majority court for a “license to discriminate” that would gut public accommodation laws that require businesses to serve all customers.
Justices in the conservative majority seemed generally supportive of the notion that Smith should not be forced to express sentiments to which she disagrees, with Justice Clarence Thomas noting that policing speech was not how public accommodations laws like Colorado's were traditionally applied.
"This is is not a hotel. This is not a restaurant. This is not a riverboat or a train," he said, referring to businesses required to service all customers. Other conservative justices, including Justices Brett Kavanaugh and Neil Gorsuch, asked similar questions.
Kavanaugh asked whether a publishing house that supports abortion rights could refuse to publish a book containing anti-abortion views. Gorsuch queried whether freelance writers could be required to accept commissions expressing views they opposed.
Echoing Thomas, Gorsuch said the extension of public accommodations laws to speech was “very different than the historical understanding of public accommodation.”
But the problem facing the court if it rules for Smith is how to determine what kind of other conduct can be exempted from antidiscrimination laws. The court could try to limit the ruling to certain opponents of same-sex marriage, although the legal principle raised in the case extends to all kind of creative businesses that might invoke their free speech rights to reject all manner of customers.
Liberal justices, who seemed more aligned with the state of Colorado, came armed with tough questions on whether businesses could refuse to serve Black or disabled customers.
Justice Ketanji Brown Jackson, for example, asked about a photographer who makes custom photos of nostalgic, sepia-toned mid-20th century scenes but restricts who can appear in the photographs.
"Precisely because they’re trying to capture the feelings of a certain era, their policy is that only white children can be photographed with Santa in this way because that’s how they view the scenes with Santa that they’re trying to depict," she said. Jackson asked Smith's lawyer, Kristen Waggoner, why that would be different to what her client is seeking.
Fellow liberal Justices Elena Kagan and Sonia Sotomayor took a similar line in raising other scenarios in which people could reject requests from customers.
"How about people who don't believe in interracial marriage or about people who believe that disabled people shouldn't get married?" Sotomayor asked.
In responding to those hypothetical situations, conservative Justice Samuel Alito brought up his own, wondering whether a "Black Santa" who sits for photos with children over the holiday season could refuse to provide service to children wearing the white outfits characteristic of the Ku Klux Klan white supremacist group.
"Black Santa has to do that?" Alito asked.
Eric Olson, Colorado's solicitor general, said the "Black Santa" would not have to be in the photograph because Ku Klux Klan outfits are not protected under Colorado's antidiscrimination law.
The case is a latest example of the conflict over the Supreme Court’s own 2015 ruling that legalized same-sex marriage, which conservative Christians oppose even as Congress has moved to enact a law with bipartisan support that bolsters protections for married same-sex couples.
Smith, whose business is called 303 Creative, told NBC News she has always been drawn to creative projects but also has strongly held beliefs that “marriage is between one man and one woman — and that union is significant.”
Smith sued the Colorado Civil Rights Commission and other state officials out of concern that she could be sanctioned under its antidiscrimination law that bars discrimination on the basis of sexual orientation in public accommodations, although she has not been sanctioned yet. Lower courts ruled against Smith, prompting her to appeal to the Supreme Court.
The case gives the court a second bite at a legal question it considered but never resolved when it ruled in a similar case in 2018 in favor of a Christian baker, also from Colorado, who refused to make a wedding cake for a gay couple. The court ruled then that the baker, Jack Phillips, did not receive a fair hearing before the state Civil Rights Commission because there was evidence of anti-religious bias.
The 2018 ruling left undecided the broader question now at issue in Smith’s case. If the court rules in favor of Smith, certain business owners would effectively have an exemption from elements of laws in 29 states that protect LGBTQ rights in public accommodations in some form. The remaining 21 states do not have laws explicitly protecting LGBTQ rights in public accommodations, although some local municipalities do.
Civil rights groups say that a ruling along those lines would undermine the entire purpose of antidiscrimination laws.
State officials have said in court papers that they never investigated Smith and had no evidence that anyone had ever asked her to create a website for a same-sex wedding. Colorado Solicitor General Eric Olson wrote that there is a long tradition of public accommodations laws protecting the ability of all people to obtain goods and services.
Smith, like Phillips before her, is represented by Alliance Defending Freedom, a conservative Christian legal group, which has had success arguing religious rights cases at the Supreme Court in recent years. The court ruled on the baker case before the retirement of Justice Anthony Kennedy, who voted in favor of LGBTQ rights in key cases. Now, following three appointments made by former President Donald Trump, the court has six conservative and three liberal justices.
Kennedy was in the majority when the court legalized gay marriage on a 5-4 vote. In another major victory for LGBTQ rights, the Supreme Court in 2020 — to the surprise of many court-watchers — ruled that a federal law that prohibits sex discrimination in employment protects LGBTQ employees.
A year later the court ruled in favor of an agency affiliated with the Catholic Church that the city of Philadelphia had barred from its foster care program because of the church’s opposition to same-sex marriage. In other cases in recent years the conservative majority has consistently backed religious rights.