Supreme Court rules free speech allows web designer to refuse service to gay couple

The Supreme Court’s conservative majority ruled in favor of an evangelical Christian graphic artist from Colorado who does not want to create wedding websites for same-sex couples, despite the state’s protective anti-discrimination law.

The vote split along ideological lines, 6 to 3, with the liberals in dissent.

It was the court’s latest examination of the clash between laws requiring equal treatment for the LGBTQ community and those who say their religious beliefs lead them to regard same-sex marriages as “false.”

Justice Neil M. Gorsuch, writing for the majority, said the First Amendment protects designer Lorie Smith from creating speech she does not believe.

“The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands,” Gorsuch wrote. “Colorado seeks to deny that promise.”

Justice Sonia Sotomayor wrote the dissent, joined by fellow liberal Justices Elena Kagan and Ketanji Brown Jackson. “Today the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class,” she wrote.

The case, 303 Creative LLC v. Elenis, came amid rising public and political approval of gay marriage. Congress recently passed legislation that would protect such unions in the event the Supreme Court ever backs away from the constitutional right it established in 2015.

In 2018, the Supreme Court ruled narrowly for Jack Phillips, a Colorado baker who refused to create a wedding cake for a gay couple. But the justices avoided declaring a clear winner in the cultural conflict between LGBTQ rights advocates who seek the protections of public accommodations laws and those who say their religious beliefs forbid countenancing same-sex marriage.

Just five miles from Phillips’s Masterpiece Cakeshop is the office of graphic designer Lorie Smith. She contended that the same Colorado law Phillips challenged, which forbids discrimination on the basis of sexual orientation, also violates her deeply held religious views and free-speech rights.

Smith wants to expand her business to create wedding websites - but only to tell the stories of brides and grooms “through God’s lens.” And she wants to be able to tell same-sex couples on her 303 Creative LLC website that she will not create such platforms for them.

“Colorado is censoring and compelling my speech and really forcing me to pour my creativity into creating messages that violate my convictions,” Smith said in an interview before her case was argued in December. “There are some messages I cannot create.”

Two courts have ruled against Smith, saying Colorado has a compelling interest to require that businesses that are open to the public serve all of the state’s citizens.

Colorado Attorney General Philip J. Weiser, a Democrat, told the Supreme Court in his brief that a ruling in favor of the plaintiff would encompass not only a business’s religious beliefs “but also objections motivated by ignorance, whim, bigotry, caprice, and more – including pure expressions of racial, sexist, or anti-religious hatred.”

When the court took Smith’s case, it declined to hear Smith’s claim that Colorado’s law violates her religious freedom. Nor did it agree to hear her request to overturn Supreme Court precedent on neutral laws that might have implications for religious believers.

Instead, the justices said they would answer this question: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”

The case came before a court much changed since the 2018 decision, which left the Colorado law undisturbed but said officials enforced it unfairly against Phillips because of religious bias on the part of some.

Justice Anthony M. Kennedy, who wrote that opinion as well as the court’s landmark decisions on gay rights, has retired. Also gone is a dissenter in the Phillips case, the late Justice Ruth Bader Ginsburg. She was the first justice to officiate at a same-sex wedding and was an advocate who warned that treating same-sex couples differently from opposite-sex ones would afford the new unions only a “skim-milk” version of marriage.

Kennedy and Ginsburg were replaced by more conservative justices on a court that has been protective of free-speech rights and increasingly sympathetic to challenges brought by religious interests. It seemed highly unlikely that the court took Smith’s case simply to affirm the lower-court rulings.

The state of Colorado is supported by the Justice Department, which, under the Biden administration, has switched its position since the Phillips case.