The Constitution’s free speech protections shield some businesses from being required to provide services to same-sex couples, the Supreme Court ruled Friday, in what dissenting justices called a “sad day in American constitutional law and in the lives of LGBT people.”
The court’s conservatives prevailed in a 6 to 3 decision in favor of a 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.
Justice Neil M. Gorsuch, writing for the majority, said that because Lorie Smith’s designs are recognized as speech, the state cannot compel her to create a message she does not believe in, even if she offers her talents for hire.
“Were the rule otherwise, the better the artist, the finer the writer, the more unique his talent, the more easily his voice could be conscripted to disseminate the government’s preferred messages,” Gorsuch wrote. “That would not respect the First Amendment; more nearly, it would spell its demise.”
In dissent — and demonstrating the depth of her disagreement by reading part of her objections from the bench — Justice Sonia Sotomayor said her colleagues were abandoning principles of inclusion and protection for gay people that past Supreme Courts extended to women and people of color during the civil rights and women’s rights movements.
Resisters back then “even claimed, based on sincere religious beliefs, constitutional rights to discriminate,” Sotomayor wrote. “The brave Justices who once sat on this Court decisively rejected those claims.”
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.” About half of the states have laws that are similar to Colorado’s public accommodation law, which says a business cannot deny the “full and equal enjoyment” of its goods and services based on a person’s race, creed, disability, sexual orientation or other traits.
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President Biden called the court’s decision “disappointing” and said he feared it could create additional pathways for businesses to exclude gay people and other minorities.
“While the Court’s decision only addresses expressive original designs, I’m deeply concerned that the decision could invite more discrimination against LGBTQI+ Americans,” Biden said in a statement. “More broadly, today’s decision weakens long-standing laws that protect all Americans against discrimination in public accommodations – including people of color, people with disabilities, people of faith, and women.”
Kristen Waggoner, who represented Smith at the Supreme Court on behalf of the conservative legal organization Alliance Defending Freedom, called the decision “a win for all Americans.”
“The government should no more censor Lorie for speaking consistent with her beliefs about marriage than it should punish an LGBT graphic designer for declining to criticize same-sex marriage,” Waggoner said in a statement. “If we desire freedom for ourselves, we must defend it for others.”
Even though Smith’s case was a First Amendment argument, it was the second win in as many days for religious challenges at the Supreme Court. The justices Thursday strengthened protections for religious rights in the workplace, siding in part with a Sabbath-observant mail carrier who quit the U.S. Postal Service to avoid having to deliver packages on Sundays.
Friday’s ruling was something of a follow-up for the court, five years after another challenge to the same Colorado law. In 2018, the justices ruled narrowly in favor of Jack Phillips, a baker who refused to create a wedding cake for a gay couple. In that decision, the justices focused on anti-religious bias they said members of a state civil rights commission had demonstrated toward Phillips. They left undecided whether a business owner’s religious beliefs or free speech rights can justify refusing some services to gay people.
Smith’s office is just five miles from Phillips’s Masterpiece Cakeshop. She wants to expand her graphic design 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.
Smith has never received a contract to design such a site, nor has she turned anyone down. But she brought a pre-enforcement challenge to the Colorado law, worried, as Gorsuch wrote, “the State will force her to convey messages inconsistent with her belief that marriage should be reserved to unions between one man and one woman.”
“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.”
Gorsuch, who was chosen by Chief Justice John G. Roberts Jr. to write the 303 Creative opinion, in 2020 surprised his fellow conservatives by writing an opinion that said Title VII of the 1964 Civil Rights Act protected gay and transgender workers. He mentioned the 2020 opinion, Bostock v. Clayton County, in announcing Friday’s ruling, and noted the strides gay Americans have made toward securing equal justice.
But Gorsuch made a distinction between the court’s precedents in which it has prohibited compelled speech and its decisions upholding public accommodation laws. He also pushed back against Sotomayor’s dissent to Friday’s ruling, which he called a “reimagination” of the case.
“It claims that, ‘for the first time in its history,’ the Court ‘grants a business open to the public’ a ‘right to refuse to serve members of a protected class,’ ” Gorsuch wrote, joined by Roberts and Justices Clarence Thomas, Samuel A. Alito Jr., Brett M. Kavanaugh and Amy Coney Barrett. “Never mind that we do no such thing.”
Gorsuch noted that Colorado itself has stipulated Smith will accept clients regardless of their sexual orientation, though she says she will not make wedding websites for same-sex couples.
“It is the dissent that would have this Court do something truly novel by allowing a government to coerce an individual to speak contrary to her beliefs on a significant issue of personal conviction, all in order to eliminate ideas that differ from its own,” he wrote.
Sotomayor, who sits to Gorsuch’s left, has in her time on the court been a supporter of gay rights, recently officiating at the same-sex wedding of a former clerk. With the court’s decision Friday, she said, “we are taking steps backward.”
“The opinion of the court is, quite literally, a notice that reads: ‘Some services may be denied to same-sex couples.’”
In her opinion, which was joined by Justices Elena Kagan and Ketanji Brown Jackson, Sotomayor said public accommodation laws stand for the principle that “the duty to serve is owed to everyone, and it extends to any business that holds itself out as ready to serve the public.”
Gorsuch said that under Colorado’s reading of the law, “the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage. Countless other creative professionals, too, could be forced to choose between remaining silent, producing speech that violates their beliefs, or speaking their minds and incurring sanctions for doing so.”
Sotomayor dismissed those worries. Even if Smith believes God is calling her to renounce same-sex marriage “through her for-profit company,” Sotomayor wrote, “the company need not hold out its goods or services to the public at large. Many filmmakers, visual artists, and writers never do. (That is why the law does not require Steven Spielberg or Banksy to make films or art for anyone who asks.)”
Colorado Attorney General Philip J. Weiser (D) told the Supreme Court in his brief that a ruling in favor of Smith 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.”
His state was supported by the Justice Department, which, under the Biden administration, has switched its position since the Phillips case.
The court has changed as well since its 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.
A previous version of this article misspelled the first name of graphic artist Lorie Smith. In addition, the first name of Justice Elena Kagan was misspelled. The article has been corrected.
