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Same-sex marriage and LGBTQ protections at center of another Supreme Court case

Justices will consider whether owners of certain creative businesses have a free speech right to refuse to undertake certain projects if they disagree with the message.
Web designer Lorie Smith in her office in  Littleton, Colo., on Nov. 7, 2022.
Web designer Lorie Smith in her office in Littleton, Colo., on Nov. 7.David Zalubowski / AP file

WASHINGTON — To Lorie Smith, her lawsuit is a free speech crusade. To her opponents, it's an effort to weaken laws aimed at combating LGBTQ discrimination.

A conservative evangelical Christian who opposes same-sex marriage and runs a business in Colorado designing websites, including for nuptials, Smith sued the state because she would like to accept customers planning opposite-sex weddings but reject requests made by same-sex couples wanting the same service.

Smith has not been sanctioned for refusing to design such a website but filed the lawsuit on the premise that she could be.

Her case has reached the U.S. Supreme Court, where she is asking the justices to decide in a case being argued on Monday that she cannot be punished under Colorado's anti-discrimination law for refusing to design websites for same-sex weddings. Smith 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 seriously undermine public accommodation laws that require businesses to serve all customers.

The case is the latest example of the enduring conflict over the Supreme Court’s 2015 ruling that legalized same-sex marriage, which conservative Christians continue to loudly 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, said in an interview 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.”

Represented by conservative Christian legal group Alliance Defending Freedom, Smith sued the state civil rights commission in 2016 out of concern that she could be sanctioned under its anti-discrimination law that bars discrimination on the basis of sexual orientation in public accommodations. Lower courts ruled against Smith, prompting her to appeal to the Supreme Court.

Smith says that because of the threat of enforcement, she has turned down all requests for wedding websites although she insists she accepts commissions from customers “from all different walks of life” including LGBTQ people.

“The court should not put anyone in the position that I’ve been put in: forcing someone to create custom artwork that goes against the core of who they are or face punishment,” Smith said.

The case gives the Supreme Court, which now has a 6-3 conservative majority, 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 Colorado 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 29 state laws 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.

'Right to discriminate'

Civil rights groups say that a ruling along those lines would undermine the entire purpose of anti-discrimination laws.

“If the court grants an exemption for what is deemed artistic and creative the court has blown a big hole in our anti-discrimination principles,” said Louise Melling, a lawyer with the American Civil Liberties Union. Such a ruling could have knock-on effects on other areas such as health care, education and employment, she added.

A brief filed by public accommodation law experts said that Colorado’s law regulates conduct, not speech, and that a ruling for Smith “would inflict broad and irreparable damage upon the very architecture of anti-discrimination law.” Smith has accepted commissions on a broad range of issues, including a law firm that handles divorce and marijuana-related issues, and no one would assume that she endorses the messages of those clients, the scholars say.

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.

"Allowing a business to refuse service because of who these customers are would break from this tradition and deny them full participation in the marketplace," he said.

Alliance Defending Freedom, which also represented Phillips, 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.

In light of recent rulings, Smith likely has reasons to be optimistic that she will receive a sympathetic hearing from the conservative justices on Monday.

"I’m hoping that the court takes a step to protect everyone’s right to speak freely," she said.