Supreme Court Hears Case Pitting Gay Rights Against Free Speech

By: Melissa Quinn

Washington — The Supreme Court is hearing 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 in the latest case before the court, brought by graphic designer Lorie Smith. 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."

On Monday, the court's three liberal justices — Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor — peppered Kristen Waggoner, Smith's counsel, about whether her work creating websites should be considered her speech, 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 replied that the speech would still be 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."

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 owns 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, known as 303 Creative LLC v. Elenis, could now be the vehicle for addressing that issue.

"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.

A web designer in Colorado wants to limit her wedding-related services to celebrations of heterosexual unions because of her religious beliefs, but a state law prohibits discrimination against gay people by businesses open to the public

The justices could settle a First Amendment question they left open only a few years ago.

The Supreme Court is hearing arguments on Monday in a First Amendment battle pitting claims of religious freedom against laws prohibiting discrimination on the basis of sexual orientation.

A web designer in Colorado, Lorie Smith, said she was happy to create graphics and websites for anyone, including L.G.B.T.Q. people. But her Christian faith, she said, did not allow her to create messages celebrating same-sex marriages. A state law forbids this kind of discrimination.

Here’s what else you need to know:

  • The ruling could have enormous consequences. Ms. Smith’s supporters say a ruling for the state would allow the government to force all sorts of artists to state things at odds with their beliefs. Her opponents say a ruling in her favor would allow many businesses to refuse service to, say, Black people or Muslims based on odious but sincerely held convictions.

  • If the case sounds familiar, it is. The court ruled in a very similar one in 2018 involving a baker of wedding cakes in Colorado but did not settle the question of whether the First Amendment permits discrimination by businesses open to the public based on their owners’ religious convictions.

  • The court has shifted to the right since that 2018 decision and has been exceptionally receptive to claims of religious freedom.

  • The court might have to give guidance on what kinds of businesses are engaged in expression. In the 2018 case, the baker’s lawyer was closely questioned about where to draw the constitutional line, but her answers did not reveal a consistent principle.



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