Supreme Court hears case pitting free speech against LGBTQ rights

Washington — The Supreme Court heard oral arguments Monday over an issue the justices have been asked to resolve before, considering a case that pits the First Amendment right to free speech 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, like 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 stance could violate Colorado’s public accommodation law, which prohibits businesses open to the public from refusing service because of sexual orientation and announcing their intent to do so.

Smith argues 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 anybody’s speech,” she told CBS News before the arguments. “We should all be free to live and work consistently with our deeply held beliefs.”

Smith started 303 Creative, her web design business, roughly a decade ago and insists that each website she creates is one-of-a-kind and unique. With plans to expand her business to create custom websites for weddings, Smith does not want to design websites for gay weddings, and wants to post a message to 303 Creative’s website disclosing that she will not do so.

Smith says she serves clients of all different backgrounds, and she insists that she makes distinctions based on the message requested, not the person requesting it — a key distinction the justices explored on Monday. If, for example, 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 for all to speak freely,” Smith said. “This not only protects me, it protects the LGBT web designer who shouldn’t be forced to communicate messages that go against their deeply held beliefs, and the right to speak freely is guaranteed to all of us.” 

Monday’s arguments

The court’s three liberal justices — Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor — peppered Kristen Waggoner, Smith’s counsel, about whether the websites should be considered Smith’s speech or that of her clients, and whether other businesses should be allowed to deny services on the basis of race, ethnicity or disability if the court rules in her favor. 

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

Waggoner, who heads the group Alliance Defending Freedom, replied 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 believe they should be telling their story, and what they’re asking you to do is tell their story, then you don’t have to do that.”

Justice Neil Gorsuch posed a hypothetical to Colorado Solicitor General Eric Olson about a freelance writer who declines to write speeches or press releases for clients of a different faith, asking whether that should be permitted and how that scenario is different from Smith’s case. 

“We have an individual who says she will sell and does sell to everyone. All manner of websites. But she won’t sell a website that requires her to express a view about marriage that she finds offensive to her religious beliefs,” Gorsuch said. “What’s the difference between the two cases? I’m struggling to understand.”

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

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

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

A familiar issue

The Supreme Court was last confronted with a case sitting at the crossroads 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 the state’s public accommodation law requiring him to create a cake for a same-sex wedding would violate his right to free speech and religious freedom. 

The Supreme Court ruled narrowly for Phillips, finding the Colorado Civil Rights Commission acted with hostility toward his sincere religious beliefs. But it left unanswered the question of whether states like Colorado can, in applying their anti-discrimination laws, compel an artist to express a message they disagree with.

Smith’s case could now be the vehicle for addressing that issue.

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

David Zalubowski / AP

“Nobody should be forced to create artwork, custom expression, that goes against the core of who they are and what they believe. And that’s what Colorado is doing,” she said.

Smith filed a lawsuit in 2016 seeking to block enforcement of the state’s public accommodation 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 Judge Timothy Tymkovich, who dissented, said the state law compelled and suppressed Smith’s speech, and violated her right to free exercise of religion. 

“Though I am loathe to reference Orwell, the majority’s opinion endorses substantial government interference in matters of speech, religion, and conscience,” he wrote.

Smith appealed to the Supreme Court in September 2021, asking the justices to decide whether applying 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 clauses of the First Amendment.

The high court agreed in February to hear Smith’s case, but limited the question to the free speech issue.

Waggoner, Smith’s attorney, told CBS News ahead of Monday’s arguments that narrowing the question 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 something that violates their convictions on any issue,” she said. “Speakers don’t lose their rights simply because they are trying to earn a living.”

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

Twenty Republican-leaning states signed on to a friend-of-the-court brief supporting Smith, telling the court that their 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.

“Never in our history has the government actually compelled ideological, political or religious speech, ever,” Waggoner said. “This would be the first time.”

But Colorado officials defending the law argue it is needed to ensure customers can participate equally in the marketplace. Adopting Smith’s position, Attorney General Phil Weiser told the court in a filing, “would encompass not only a business’s objections to serving certain customers motivated by sincerely held religious beliefs, but also objections motivated by ignorance, whim, bigotry, caprice, 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 from the nation’s long tradition of protecting customers’ ability to buy goods and services regardless of religion, race, disability and other protected characteristics.

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

“Public accommodations laws thus sometimes incidentally require owners of expressive businesses to act in a manner inconsistent with their deeply held beliefs,” the Justice Department said in a filing to the court. “But under this Court’s precedents, those 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 harmful, and the consequences wide-ranging.

For Smith and groups backing 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 belief, as a protected class, meaning that a Democrat would have to write a slogan for a Republican, or a Muslim might have to write something for an evangelical church,” Waggoner said. “It really transcends the issue of marriage, and we’re hopeful that the court will again affirm a very basic principle that free speech is for everyone.”

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

But Weiser and states backing Colorado warn that a decision in support 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 photographs to celebrate a baby’s arrival, a custom suit to start a new job,” he told the court. “These customers do not look, love, or worship the same way. But they all expect to participate in the public marketplace as equals. A business that rejects these customers because of who they are harms them as they seek to express their grief, mark their joy, and improve their lives.”

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

They wrote: “Examples abound of businesses that could refuse to provide a service to customers based only on the businesses’ objection to some ‘message’ that, at its core, hinges only on those customers’ identities: A bakery whose owner opposed mixed-race relationships could refuse to bake wedding cakes for interracial couples; a real estate agency whose owner opposed racial integration could refuse to represent Black couples seeking to purchase a home in a predominantly white neighborhood; or a portrait studio whose proprietor opposes interracial adoption could refuse to take pictures of white parents with their Black adopted children.”

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

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