In a blow to LGBTQ rights, the US Supreme Court on Friday ruled that the constitutional right to free speech allows certain businesses to refuse to provide services for same-sex weddings, ruling in favor of a web designer who cited her Christian beliefs in challenging a Colorado anti-discrimination law.
The justices in a 6-3 decision authored by conservative Justice Neil Gorsuch overturned a lower court’s ruling that had rejected Denver-area business owner Lorie Smith’s bid for an exemption from a Colorado law that prohibits discrimination based on sexual orientation and other factors.
Smith’s business, called 303 Creative, sells custom web designs. The dispute focused on protections for freedom of speech under the US Constitution’s First Amendment.
“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,” wrote Gorsuch.
Liberal justices dissent
The court’s three liberal justices dissented from the decision. In the dissent, liberal Justice Sonia Sotomayor wrote: “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.”
US President Joe Biden on Friday said he was concerned the ruling could lead to more discrimination against LGBTQ Americans.
“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.
The court acted on its final day of rulings in its term that began in October.
The case pitted the right of LGBTQ people to seek goods and services from businesses without discrimination against the free speech rights, as asserted by Smith, of artists as she calls herself — whose businesses provide services to the public.
Kelley Robinson, president of the LGBT civil rights group Human Rights Campaign, called the decision “a deeply troubling crack in our progress and should be alarming to us all. People deserve to have commercial spaces that are safe and welcoming. This decision continues to affirm how radical and out-of-touch this court is.”
The court has a 6-3 conservative majority. The liberal justices during oral arguments in the case in December said a decision favoring Smith could empower certain businesses to discriminate.
Services not requested
Smith preemptively sued Colorado’s civil rights commission and other state officials in 2016 because she said she feared being punished for refusing to serve same-sex weddings under Colorado’s public accommodations law.
She hadn’t been approached by anyone requesting her services for a same-sex marriage and, according to a defense motion filed in 2016, her business wasn’t publicly offering web design services for weddings on its website when she filed her suit.
The New Republic reported that it wasn’t until February 2017 that the name of a supposed person seeking Smith’s services for a same-sex wedding, identified as “Stewart” (with no last name), appeared in a filing. Stewart was a real person, but he told The New Republic he never contacted the business and said he had been married to a woman for more than a decade.
Smith, an evangelical Christian who has said she believes marriage is only between a man and a woman, and her lawyers have attested that she is not discriminating against anyone, but objects to messages that contradict her Christian beliefs.
She is represented by attorneys from the Alliance Defending Freedom, a conservative religious rights group.
Smith said last year, “My faith has taught me to love everyone, and that’s why I work with everyone through my business. But that also means I can’t create every message.”
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Possible ripple effect
Colorado, civil rights groups and numerous legal scholars warned of a ripple effect if Smith won, allowing discrimination based not only on a business owner’s religious beliefs, but potentially racist, sexist and anti-religious views.
Public accommodation laws exist in many states, banning discrimination in areas such as housing, hotels, retail businesses, restaurants and educational institutions. Colorado first enacted one in 1885. Its current Anti-Discrimination Act bars businesses open to the public from denying goods or services to people because of race, gender, sexual orientation, religion and certain other characteristics.
Colorado argued that its Anti-Discrimination Act regulates sales, not speech, to ensure “equal access and equal dignity.” Smith thus is free to sell whatever he wants, including websites with biblical passages stating an opposite-sex vision of marriage.
US Senate Majority Leader Chuck Schumer, a Democrat, said in a statement: “Refusing service based on whom someone loves is just as bigoted and hateful as refusing service because of race or religion. And this is bigotry that the vast majority of Americans find completely rejected.”
Biden’s administration, supporting Colorado in the case, argued that Smith’s bid for an exemption went too far because she sought a right to refuse to create a wedding website of any kind for a same-sex couple, even a basic one simply stating logistical details.
Legal analysts on both sides of the issue have said the decision is narrow and won’t apply to most businesses.
Jennifer C. Pizer, the chief legal officer for Lambda Legal, said in a statement that the ruling applies specifically to businesses that create original artwork and pure speech, and then offer that work as limited commissions.
Still, she said, the ruling continued the court majority’s “dangerous siren call to those trying to return the country to the social and legal norms of the 19th century.”
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Some religious groups against ruling
Many conservative religious leaders welcomed the ruling, including Brent Leatherwood, president of the Southern Baptist Convention’s public policy wing. “If the government can compel an individual to speak a certain way or create certain things, that’s not freedom — it’s subjugation. And that is precisely what the state of Colorado wanted,” said Leatherwood.
But Francis DeBernardo, executive director of the New Ways Ministry, which advocates for greater LGBTQ acceptance in the Catholic Church, said the decision “dangerously allows religious beliefs to be weaponized for discrimination.”
“Religion should be a tool to help unite people across ideological lines, not cause greater isolation into camps that oppose one another,” he said. Christine Zuba, a transgender woman from Blackwood, New Jersey, has been active in seeking to increase the acceptance of trans people in the Catholic Church.
She said the justices who made the “extremely disappointing and concerning” ruling were “naïve” to think the decision wouldn’t lead to discrimination against other groups as well.
