Supreme Court Backs Web Designer Against Same-Sex Marriage

(Bloomberg) -- A divided US Supreme Court carved out a First Amendment exception to laws barring businesses from discriminating, ruling that a Christian website designer has a free-speech right to create wedding pages only for opposite-sex couples.

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Voting 6-3 along ideological lines, the court said the Constitution requires allowances for businesses that engage in expressive activities, rejecting Colorado’s contention that the designer would be discriminating against LGBTQ people.

“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. “The First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply ‘misguided.’”

The ruling adds to a string of victories for religious groups and individuals at the nation’s highest court. It deals a blow to LGBTQ rights eight years after the court’s landmark decision legalizing same-sex marriage nationwide.

The court’s three liberals blasted the ruling, with Justice Sonia Sotomayor reading a portion of her dissent from the bench for emphasis.

“Today is a sad day in American constitutional law and in the lives of LGBT people,” Sotomayor wrote for the group. “By issuing this new license to discriminate in a case brought by a company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.”

Colorado is one of about two dozen states that bar discrimination on the basis of sexual orientation by businesses that serve the general public.

Colorado Designer

The ruling is a win for Lorie Smith, a Denver-area web designer who says she wants to start creating wedding pages without having to provide services for same-sex ceremonies. Smith sued the state without waiting to see whether any potential customers might file a civil-rights complaint against her.

What the Supreme Court Case on Same-Sex Weddings Is About: Q&A

Smith’s lawyers said the Colorado law would force her to either abandon her business plans or convey messages that violate her faith.

“The US Supreme Court rightly reaffirmed that the government can’t force Americans to say things they don’t believe,” said Smith’s lawyer, Kristen Waggoner of the Christian legal group Alliance Defending Freedom, in a statement. “The court reiterated that it’s unconstitutional for the state to eliminate from the public square ideas it dislikes, including the belief that marriage is the union of husband and wife.”

Civil-rights groups said the ruling created a constitutional right to discriminate.

“The Supreme Court held today for the first time that a business offering customized expressive services has the right to violate state laws prohibiting such businesses from discrimination in sales,” said David Cole, legal director of the American Civil Liberties Union, in a statement. “The court’s decision opens the door to any business that claims to provide customized services to discriminate against historically-marginalized groups.”

Colorado argued that the state’s public accommodation law, which bars businesses from withholding products and services from protected classes of people, would prevent Smith from effectively denying her services to LGBTQ people. The Biden administration backed the state in the case.

‘Brave Justices’

In siding with Smith, Gorsuch said both sides in the case had agreed that Smith would be engaging in expression in creating customized wedding websites. He said the court wasn’t deciding what other types of businesses could claim similar protections. Photographers, florists and bakers have pressed similar legal arguments in other cases.

“Doubtless, determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions,” he wrote. “But this case presents no complication of that kind.”

Sotomayor said the ruling couldn’t be squared with a line of Supreme Court rulings refusing to create exemptions from bans on racial and gender discrimination.

“When the civil rights and women’s rights movements sought equality in public life, some public establishments refused,” she wrote. “Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave justices who once sat on this court decisively rejected those claims.”

Smith’s challenge was a follow-up to a clash involving a Colorado baker who refused to make a cake to celebrate a same-sex wedding. The Supreme Court in 2018 sided with the baker on narrow grounds while sidestepping larger questions about whether and when business owners can turn away customers.

The case is 303 Creative v. Elenis, 21-476.

(Updates with reaction, excerpts from opinions starting in sixth paragraph.)

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