Supporters of same-sex marriage unfurl a large rainbow pride flag near the U.S. Supreme Court, April 28, 2015, in Washington, D.C. Photo by Drew Angerer | Getty Images
WASHINGTON (CN) — A six-year crusade came to a head at the Supreme Court on Monday, pitting Colorado’s nondiscrimination law against a Christian website designer who refuses to create wedding websites for same-sex couples.
It was unsurprising that the narrow question at the center of the case perplexed many of the justices since the high court passed up on answering it only four years ago. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court ruled in favor of a cakemaker refusing his services to a same-sex couple. That case also arose out of Colorado but was based on the actions of the state’s civil rights commission, leaving unanswered the question of whether the cakemaker should be compelled to offer his services to same-sex couples, the court dem.
Lorie Smith’s case brings that topic to a head. Noting that her Christian beliefs confine marriage only to a ceremony between one man and one woman, Smith argues that Colorado’s public accommodation laws force her to create websites for these couples in a violation of her free speech rights.
“[Smith] serves all people, deciding what to create based on the message, not who requests it,” her attorney Kristen Waggoner with the Alliance Defending Freedom told the court this morning. “But Colorado declares her speech a public accommodation and insists that she create and speak messages that violate her conscience.”
After two and a half hours of arguments, the conservative majority appeared inclined to agree with Smith that she need not build wedding websites for same-sex couples. The majority of the court seemed to think Colorado would be violating Smith’s rights by compelling her to speak against her religious beliefs.
But many of the justices also noted the very narrow distinction between the opposing sides. Justice Samuel Alito called the state’s case a “sliver of an argument.” Justice Brett Kavanaugh noted that the justices’ decision on the issue could come down to the categorization of website designers since businesses are required to service all customers.
The liberal wing of the court expressed concern that a ruling in this case could snowball into a free speech loophole to discrimination. Justice Sonia Sotomayor questioned where the court would draw the line on what kind of discrimination would be permitted, noting that the same arguments could be made for interracial marriage or excluding people with disabilities.
“Where’s the line,” Sotomayor asked. “I can choose to serve whom I want if I disagree with their personal characteristics like race or disability. I can choose not to sell to those people.”
The hypothetical-heavy arguments included almost every culture-wars issue on the books including discrimination on race, religion, sexual orientation and political preference. These scenarios conveyed a worry by some justices about how far even a narrow ruling in the case could extend. Justice Amy Coney Barrett noted the court’s ruling here will impact many other cases.
Colorado Solicitor General Eric Olson said Smith’s request for a free-speech exemption clause to the Colorado Anti-Discrimination Act — the state’s public accommodation law — would equate to a “license to discriminate.”
“The free speech clause exemption the company seeks here is sweeping because it would apply not just to sincerely held religious beliefs like those of the company and its owner, but also to all sorts of racist, sexist and bigoted views,” Olson said. “This rule would allow another web design company to say no interracial couple served, an ad agency could refuse women-led businesses, and a tech consulting company could refuse to serve 303 Creative itself because it disagreed with the owner’s religion.”
Where exactly to draw the line between free speech and anti-discrimination laws eluded many of the justices. This was partly because Smith brought the justices a preenforcement suit; she filed her suit against Colorado before a same-sex couple even requested her services. This creates difficulties for the justices in deciding a ruling. Justice Elena Kagan said the reason for the multitude of hypotheticals during oral argument was due to the lack of facts in the case which make the justices’ ruling all the more difficult.
“It really depends on the facts and on what exactly Ms. Smith is being asked or compelled to do,” Kagan said. “That matters and we have a case without any of that.”
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