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U.S. Supreme Court rules Colorado web developer doesn’t have to serve gay couple in case with Washington state ties

Lorie Smith, a web designer in Colorado who says she has a First Amendment right to refuse to provide services for same-sex marriages despite a state law that forbids discrimination against gay people, speaks to reporters outside the U.S. Supreme Court in Washington on Dec. 5. In a 6 to 3 vote, split along ideological lines, the Supreme Court on Friday held that the First Amendment prohibits Colorado from forcing Smith to create expressive designs speaking messages with which the designer disagrees. (MICHAEL A. MCCOY)
From staff and wire reports

The U.S. Supreme Court on Friday ruled in favor of a Colorado graphic designer who didn’t want to create wedding websites for same-sex couples, finding a state law that’s similar to one in Washington would have compelled her to create messages that conflict with her beliefs.

That’s a violation of the First Amendment of the Constitution, the panel’s conservative majority ruled. They were asked to rule on questions that had been raised in a Washington state case a decade ago, when a gay couple in Benton County sued under Washington’s anti-discrimination law after a florist refused to provide flowers for their wedding.

In that Benton County case, the Washington Supreme Court found that the services provided by Arlene’s Flowers were not speech that is protected by the First Amendment. The florist’s legal team included Kristen Waggoner, who also argued the Colorado case before the United States Supreme Court in December.

By contrast, in Friday’s case, the majority of the Supreme Court found that Lorie Smith’s marketing and web development business did create speech that was protected by the Constitution.

“In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance,” Justice Neil Gorsuch wrote for the majority.

Justice Sonia Sotomayor wrote the dissent in Creative LLC v. Elenis, 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, adding that, “Today is a sad day in American constitutional law and in the lives of LGBT people.”

George Ahrend, an attorney in Spokane who represented the owners of Arlene’s Flowers in the Washington case, said the biggest difference between the two issues was the finding against his client at the time that the creation of floral arrangements was not conduct that was protected by the First Amendment. Because of that, a unanimous Washington Supreme Court ruled against the florist, and that decision was upheld by the United States Supreme Court that reviewed, but did not rule on, the Arlene’s Flowers case.

The Washington Supreme Court was required to relook at its decision in the florist case because of a 2018 U.S. Supreme Court decision. In that case, the court ruled narrowly for Jack Phillips, a Colorado baker who refused to create a wedding cake for a gay couple. But the justices in that case 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.

The justices get closer to an answer to that question in Friday’s decision but also left unanswered a larger question about what constitutes protected speech when providing a good or service, Ahrend said.

“If I were to say, what’s the big deal here, it’s when free speech and anti-discrimination laws collide, it’s that free speech is going to win. At least with respect to sexual orientation,” Ahrend said.

Gorsuch’s opinion seeks to make that distinction clear, and defend against arguments in the court’s dissent that Friday’s ruling could be used to justify discriminatory actions by businesses.

“In saying this much, we do not question the vital role public accommodations laws play in realizing the civil rights of all Americans,” Gorsuch wrote. “This Court has recognized that governments in this country have a ‘compelling interest’ in eliminating discrimination in places of public accommodation.”

What governments cannot do, Gorsuch and the majority argued, is make someone say something they do not want to say.

But the dissenting justices, and groups representing the rights of LGBTQ Americans, argued Friday’s decision will make it more difficult for local governments to do just that with existing anti-discrimination laws. That includes Washington.

“The LGBT rights movement has made historic strides, and I am proud of the role this Court recently played in that history,” Sotomayor wrote. “Today, however, we are taking steps backward.”

Staff writer Kip Hill and the Washington Post’s Robert Barnes contributed to this report.