Washington — The Supreme Court’s conservative bloc appeared sympathetic Monday to a Colorado graphic designer who argues a state law prohibiting discrimination on the basis of sexual orientation violates her free speech rights by forcing her to express a message that contradicts her closely held religious beliefs.
During oral arguments in the case known as 303 Creative LLC v. Elenis, the court seemed to move closer to resolving a question it has left unanswered since 2018, when it narrowly ruled in favor of a Colorado baker who refused to make a cake for a same-sex wedding: whether states like Colorado can, in applying their anti-discrimination laws, compel an artist to express a message they disagree with.
While the court’s conservative majority appeared prepared to find that Colorado cannot force web designer Lorie Smith to create websites for same-sex weddings, several recognized that there are differences between artists who are conveying a message and vendors selling goods and services in the marketplace.
“The case comes down to a fairly narrow question of, how do you characterize website designers? Are they more like the restaurants and the jewelers and the tailors, or are they more like the publishing houses and the other free speech analogues that are raised on the other side?” Justice Brett Kavanaugh asked.
Justice Amy Coney Barrett told Kristen Waggoner, who argued the case on behalf of Smith, that she was on “strongest ground” when talking about the uniqueness of the websites Smith makes and work that goes into creating them.
“It’s about the message,” Barrett said, after posing a hypothetical scenario to Waggoner focused on whether Smith would design a site for a heterosexual couple getting married after divorcing other people (Waggoner said Smith likely would not).
Smith, who started her company 303 Creative roughly a decade ago, 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, in turn, argues the law violates her First Amendment rights since the state is forcing her to express a message she disagrees with. Waggoner told the court that Smith’s speech has been chilled for six years, as she has put on hold plans to expand her business to create custom websites for weddings while her court fight played out.
The dispute before the Supreme Court pits the First Amendment right to free speech against LGBTQ rights and state laws designed to protect from discrimination, a conflict that the court has been asked to address before but has declined to definitively resolve.
“The complicating fact here is this is not a hotel. This is not a restaurant. This is not a riverboat or a train,” Justice Clarence Thomas said. “I’m interested in the intersection of public accommodation law and speech.”
The court’s three liberal justices — Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor — expressed deep concerns about whether exempting Smith from Colorado’s public accommodation law would open the door to businesses denying services on the basis of race, ethnicity or disability if the court rules in her favor.
Jackson, the newest member of the Supreme Court and the first Black female justice, wondered whether a photographer seeking to depict Christmas scenes from the film “It’s a Wonderful Life” could limit their photography to White children.
Sotomayor echoed that premise: “What about people who don’t believe in interracial…
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