The atmosphere outside the gates of the US Supreme Court in Washington DC on Monday was that of one of the big cases. Conservative organizations and LGBTQI+ activists demonstrated outside while inside, a case in which the clash between religious beliefs and the rights of same-sex couples was being debated. The conservative majority Supreme Court appears to be inclined to back a Colorado web designer who refuses to provide her services for same-sex weddings, despite the fact that Colorado state law rejects discrimination based on sexual orientation. However, it will probably not be until June that the blurred line between constitutionally protected free speech and unlawful discrimination against minorities is drawn.
The court is deliberating an appeal by 303 Creative, a webpage design company owned by 38-year-old evangelical Christian Lorie Smith, who believes in marriage as being exclusively the union between a man and woman. Smith wishes to deny her services to same-sex marriages and argues that her right to do so is enshrined under the First Amendment of the US Constitution protecting freedom of speech. The case - 303 Creative LLC v. Elenis – has become the latest skirmish in the ongoing culture wars that the Supreme Court is willing to wage in its shift to the right, even if it is somewhat prefabricated. Smith does not yet have a website offering her wedding announcement services to couples wishing to tie the knot, and no same-sex couple has yet asked her to provide them. But she argues that she intends to set up the business and wants to add a notice to the website stating that she will not cater for gay clients, something that is prohibited under Colorado legislation.
All parties acknowledged during Monday’s hearing that no one can force the designer to create a website that conveys pro-homosexual marriage messages. But Smith refuses to provide her services to gay couples even if she does not have to include such messages, or even if a design she is commissioned to create is identical to one already provided to a heterosexual couple or if it only includes basic details such as the names of the bride and groom, venue, accommodation options, the wedding list and other logistical details.
The ‘limiting line’ of discrimination
The progressive judges in the Supreme Court have cornered Smith’s lawyer, Kristen Waggoner, who has incurred in errors and contradictions and has not been able to explain exactly where the line is drawn if discrimination in the name of freedom of expression based on personal beliefs is allowed. Justice Sonia Sotomayor has been the most trenchant, asking if Smith is allowed to deny her services because she doesn’t believe in gay marriage: “What is the limiting line? How about people who don’t believe in interracial marriage? Or about people who don’t believe that disabled people should get married?”
Smith’s lawyer argues that it’s not about the clients, but the message: that is to say, the designer is happy to cater for gay clients for other assignments that have nothing to do with marriage. The question is whether the mere fact of having to accept a hypothetical commission to design a website for a gay wedding, even if the design is not ideologically charged, somehow forces her to spread an implicit pro-equal marriage message. “The same message can mean different things, like a Black sculptor carving a custom cross to celebrate a Catholic baptism, but not an Aryan church rally,” Waggoner said.
The progressive judges stressed that this concept of implicit message has never been admitted and warned of the risks of opening this loophole. In addition, they pointed out that it is not the web designer who invites and transmits a message, but the contracting parties, who are considered to be the authors of the message.
Monday’s session was spent drawing the line between goods and services that include a message or speech (and are therefore protected by freedom of expression) and those that do not. As such, a speechwriter cannot be forced to accept a commission to support things against their convictions. On the other hand, a company that rents chairs for wedding banquets cannot refuse to do so for a gay marriage. The design of the wedding announcement website falls somewhere in between.
As Smith’s lawyer placed photography among the examples covered by free speech, Justice Ketanji Brown Jackson, an African-American, provided another example: can a photographer in a shopping mall be allowed to refuse to let Black children take a picture with a white Santa Claus, claiming he wants to recreate images from another era, of classic 1940s and 1950s Santa scenes? And can he be allowed to put up a sign saying “white children only?” while directing Black and Hispanic children to another Santa at the other end of the mall? “There are difficult lines to draw and that may be an edge case,” Waggoner replied.
Colorado Solicitor General Eric Olson rejected these arguments and warned of the risks of ruling in Smith’s favor. “Granting such a license to discriminate would empower all firms offering what they consider expressive services, from architects to photographers to consultants, to deny service to clients because of their disability, sexual orientation, religion or race.”
Olson provided a graphic example to back the notion that the designer is not being forced to express a message she doesn’t believe in, but rather to prevent discrimination: “The company can choose to sell websites that only feature biblical quotes describing marriage as being between a man and a woman, just like a Christmas store can choose to sell only Christmas-related items. The company just cannot refuse to serve gay couples, as it seeks to do here, just as the Christmas store cannot announce no Jews allowed.”
Conservative Judge Amy Coney Barrett put the Colorado lawyer on the spot by asking whether a LGBTQI+ organization that operated as a public establishment and had a website that placed ads to celebrate gay marriages could reject requests from heterosexual couples. Olson acknowledged it would have to admit them.
Three years ago, the Supreme Court upheld the case of a Colorado baker who refused to bake a wedding cake for a gay couple. The current case shares similarities and differences but there is agreement that its outcome may be more transcendent, as it establishes the doctrine on the extent to which religious and other beliefs can be protected by freedom of expression to justify discriminatory actions.
The conservative judges seemed to show their willingness to endorse Smith’s argument that she is not seeking to discriminate against anyone in particular but rejects a message that due to her beliefs she does not share. They also attempted to draw a line between discrimination based on sexual orientation and discrimination based on race, to which Justice Brown Jackson declared herself “perplexed,” as she understood that “opposition to interracial marriages and to integration in many instances was on religious grounds.”
Justice Sotomayor asked the Colorado Solicitor General a question containing some rhetoric, but one that served to summarize the case: “This would be the first time in the court’s history that it would say a commercial business open to the public, serving the public, could refuse to serve a customer based on race, sex, religion or sexual orientation?” “Yes,” Olson replied.
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