Justice Samuel A. Alito Jr. said during oral arguments that a win for Colorado would mean some businesses that provide custom speech for customers could be forced to “espouse things they loathe.”
The three liberal justices, in contrast, questioned whether the websites Smith would create would be her own speech or simply reflect the wishes of the couples who hired her.
If the court ruled against Colorado, Justice Sonia Sotomayor said, it would be “the first time in the Supreme Court’s history” that it would allow a business open to the public to “refuse to serve a customer based on race, sex, religion or sexual orientation.”
The case is something of a follow-up to the court’s decision in 2018, when it ruled narrowly for Colorado baker Jack Phillips, who refused to create a wedding cakc for a same-sex couple. The court left undisturbed, however, Colorado’s law that forbids companies open to the public from denying goods or services to customers based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”
Graphic-designer Smith says that law violates her deeply held religious views and free speech rights by forcing her to create messages she does not believe.
Smith wants to create wedding websites to tell “through God’s lens” the stories of heterosexual couples. And she wants to be able to explain to same-sex couples on her 303 Creative LLC website that she will not create such platforms for them.
The court came to Monday’s argument equipped with hypotheticals — mall Santas who might refuse to take photographs with minority children, political speechwriters who might be forced to write for the opposition, newspapers or websites told they could not choose which wedding announcements to publish.
Justice Ketanji Brown Jackson brought up the mall Santa, wondering whether a photographer who wanted to create the ambiance of the movie “It’s a Wonderful Life” might be able to exclude Black children.
Alito countered by conjuring up a Black Santa at the other end of the mall who wanted to be free to refuse a photograph to a child wearing a Ku Klux Klan outfit.
When Justice Elena Kagan said that Santa could refuse anyone wearing such an outfit, regardless of their race, Alito said it would be unlikely that his example would be a Black child.
A thread throughout the arguments was whether the refusal to provide wedding-related services for a same-sex couple could be compared to the same treatment of interracial couples.
Smith’s attorney Kristen Waggoner said it could not, and noted that in its decision finding a constitutional right to marriage for gay couples, the court noted that respect was due to those who disagreed with same-sex marriage as a matter of religious belief.
Colorado’s solicitor general Eric R. Olson said Smith was conflating speech with commerce.
A story would be free to sell only Christmas items if it wanted to, Olson said. But it couldn’t post a sign that said “No Jews allowed.”
At this point, Smith’s objections are theoretical. She has not created such her 303 Creative website and has not had to tell a same-sex couple that she…
Read More: Supreme Court seems to side with 303 Creative in gay rights case
