WASHINGTON, D.C. (BP) – The U.S. Supreme Court debated with lawyers at length Monday (Dec. 5) whether a state has the right to compel speech in the latest case involving the intersection of religious freedom and same-sex marriage.
The justices heard oral arguments for more than two hours in a designer’s challenge of a Colorado policy that requires her to create custom websites for same-sex weddings in violation of her religious beliefs. After two lower courts ruled in favor of the state, the Supreme Court agreed to decide whether the government can use a public-accommodation law – in this case, the Colorado Anti-discrimination Act (CADA) – to compel an artist to speak or remain silent without violating the First Amendment’s protection of free speech.
The high court is expected to issue an opinion before it adjourns next summer in what is so far the most significant case of its term involving the rights of religious adherents.
Lorie Smith, owner of 303 Creative in the Denver area, designs websites for a variety of causes and clients, including people who identify as lesbian, gay, bisexual or transgender (LGBT). She will not create websites for same-sex weddings, however, because of her belief as a Christian that marriage is only between a man and a woman.
Smith’s refusal to design a website for a same-sex ceremony is based on the message it would send, not on the people involved, Kristen Waggoner told the Supreme Court during Monday’s oral arguments.
Smith “serves all people, deciding what to create based on the message, not who requests it,” said Waggoner, president and general counsel of Alliance Defending Freedom (ADF).
Colorado forces her “to create speech, not simply sell it,” Waggoner told the high court. The state “says it can compel speech on the same topic, but Miss Smith believes opposite-sex marriage honors Scripture and same-sex marriage contradicts it. If the government can label this speech equivalent, it can do so for any speech, whether religious or political,” she said.
While Waggoner contended Smith’s refusal to design websites for same-sex ceremonies is based on the message she would be communicating about marriage by doing so, lawyers for Colorado and the United States argued it is based on the “status” of the couple seeking the service.
Colorado Solicitor General Eric Olson told the justices her business’ policy is “status-based discrimination,” since the CADA includes sexual orientation as a protected class. Brian Fletcher, the U.S deputy solicitor general, agreed with Associate Justice Sonia Sotomayor that Smith is asking for “a status-based exception” to the CADA. Sotomayor went on to say Smith is not seeking “a speech-based exception.”
“[I]f she is discriminating based on status, and that includes if she is defining the message or product based on the status, defining the what by the who, that is not OK,” Fletcher said.
The Supreme Court’s precedent in a 1995 opinion should govern this case, Waggoner told the justices. In a 7-2 decision, the high court ruled the organizers of Boston’s St. Patrick’s Day Parade did not violate a public accommodation law by refusing to permit a lesbian, gay and bisexual organization to participate.
The First Amendment “is broad enough to cover the lesbian website designer and the Catholic calligrapher,” Waggoner said. “The line is that no one on any side of any debate has to be compelled to express a message that violates their core convictions …”
The justices offered numerous hypothetical situations in their questioning. Sotomayor asked whether the speech of artists would be protected if they declined to provide services for the wedding of an interracial or disabled couple based on their beliefs. Associate Justice Ketanji Brown Jackson asked about a photography business that refused to include black children in scenes with Santa Claus.
The message in Jackson’s hypothetical is not in the photo, Waggoner said. In response to a follow-up question, she explained the Supreme Court did not say in its 2015 decision legalizing same-sex marriage that religious objections to gay marriage are the equivalent of objections to people of color.
Sotomayor, Jackson and Associate Justice Elena Kagan, in particular, seemed to be skeptical of Waggoner’s arguments, while conservative justices such as Samuel Alito and Neil Gorsuch appeared to be more receptive to her points.
Afterward, Brent Leatherwood, president of the Southern Baptist Ethics & Religious Liberty Commission, told Baptist Press, “Christians have, for 2,000 years, said that marriage is a picture of the Gospel. It was clear from today’s oral arguments that several justices have never encountered this notion on a prior occasion. This is unfortunate as it is central to understanding why a Christian creative professional would object to being compelled by the state to say something contrary to this deeply held belief.
“That is why Justice Gorsuch was exactly right when he seemed to suggest this case is not about who is being served ‘but about what’ the state of Colorado is forcing upon the speech creator,” he said in written comments.
“Today’s proceedings reveal why the court should rule in favor of 303 Creative, because to do otherwise would be tantamount to giving the government keys to a paver to roll right over private, business-owning Christians who disagree with whatever cultural notions about marriage and family happen to be fashionable at a given moment.”
In a 7-2 opinion in 2018, the justices ruled in favor of Colorado cake artist Jack Phillips in a similar case under the CADA. Phillips had declined to design and decorate a cake for the wedding of two men.
The high court’s decision was not an expansive victory for religious freedom, however. The justices found the Colorado Civil Rights Commission demonstrated “religious hostility” toward Phillips, owner of Masterpiece Cakeshop, but said similar facts in different contexts may produce different rulings.
The case is 303 Creative v. Elenis.
(EDITOR’S NOTE – Tom Strode is Washington bureau chief for Baptist Press.)