By Jessica Gresko, The Associated Press
WASHINGTON — The Supreme Court’s conservative majority sounded sympathetic Monday to a Christian graphic artist who objects to designing wedding websites for gay couples, a dispute that’s the latest clash of religion and gay rights to land at the highest court.
The designer and her supporters say that ruling against her would force artists — from painters and photographers to writers and musicians — to do work that is against their faith. Her opponents, meanwhile, say that if she wins, a range of businesses will be able to discriminate, refusing to serve Black customers, Jewish or Muslim people, interracial or interfaith couples or immigrants, among others.
The lively arguments at the Supreme Court ran well beyond the allotted 70 minutes.
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Justice Neil Gorsuch, one of three high court appointees of former President Donald Trump, described Lorie Smith, the website designer, as “an individual who says she will sell and does sell to everyone, all manner of websites, (but) that she won’t sell a website that requires her to express a view about marriage that she finds offensive.”
The issue of where to draw the line dominated the questions early in Monday’s arguments at the high court.
Justice Ketanji Brown Jackson asked whether a photography store in a shopping mall could refuse to take pictures of Black people on Santa’s lap.
“Their policy is that only white children can be photographed with Santa in this way, because that’s how they view the scenes with Santa that they’re trying to depict,” Jackson said.
Justice Sonia Sotomayor repeatedly pressed Kristen Waggoner, the lawyer for Smith, over other categories. “How about people who don’t believe in interracial marriage? Or about people who don’t believe that disabled people should get married? Where’s the line?” Sotomayor asked.
But Justice Samuel Alito, who seemed to favor Smith, asked whether it’s “fair to equate opposition to same-sex marriage to opposition to interracial marriage?”
The case comes at a time when the court is dominated 6-3 by conservatives and following a series of cases in which the justices have sided with religious plaintiffs. It also comes as, across the street from the court, lawmakers in Congress are finalizing a landmark bill protecting same-sex marriage.
The bill, which also protects interracial marriage, steadily gained momentum following the high court’s decision earlier this year to end constitutional protections for abortion. That decision to overturn the 1973 Roe v. Wade case prompted questions about whether the court — now that it is more conservative — might also overturn its 2015 decision declaring a nationwide right to same-sex marriage. Justice Clarence Thomas explicitly said that decision should also be reconsidered.
The case being argued before the high court Monday involves Smith, a graphic artist and website designer in Colorado who wants to begin offering wedding websites. Smith says her Christian faith prevents her from creating websites celebrating same-sex marriages.
“Ms. Smith believes opposite-sex marriage honors scripture and same-sex marriage contradicts it,” Waggoner told the justices.
But that could get her in trouble with state law. Colorado, like most other states, has what’s called a public accommodation law that says if Smith offers wedding websites to the public, she must provide them to all customers. Businesses that violate the law can be fined, among other things.
Five years ago, the Supreme Court heard a different challenge involving Colorado’s law and a baker, Jack Phillips, who objected to designing a wedding cake for a gay couple. That case ended with a limited decision, however, and set up a return of the issue to the high court. Waggoner, of the Alliance Defending Freedom, also represented Phillips.
Like Phillips, Smith says her objection is not to working with gay people. She says she’d work with a gay client who needed help with graphics for an animal rescue shelter, for example, or to promote an organization serving children with disabilities. But she objects to creating messages supporting same-sex marriage, just as she wouldn’t create a website for a couple who met while they both were married to other people and then divorced, Waggoner said.
Smith says Colorado’s law violates her free speech rights. Her opponents, including the Biden administration and groups such as the American Civil Liberties Union, the NAACP Legal Defense & Educational Fund, disagree.
Twenty mostly liberal states, including California and New York, are supporting Colorado while another 20 mostly Republican states, including Arizona, Indiana, Ohio and Tennessee, are supporting Smith.
Colorado Attorney General Phil Weiser said in a video chat with reporters Monday that the wedding cake case was different because there was an actual couple who had been denied service, rather than the hypothetical situation that exists in the Smith case.
“This business, 303 Creative, has yet to refuse any couples, has yet to make any websites, so that complicates matters,” he said. “If the court were to rule in their favor, it’s not as if we have a clear set of facts that the court is ruling based on. The court is going to rule on the face of this for all sets of facts.”
He pointed out that it’s important to note that Smith isn’t making an argument around her religious freedoms, but rather her freedom of speech.
“It’s not about religious-based concerns or exemption based on religion,” Weiser said. “It’s a broad free speech claim which means anyone’s moral objections would be relevant.”
That means someone could say they don’t want to serve interracial couples or disabled couples without necessarily a religious reasoning, he said.
He also said that the justices demonstrated a clear understanding of the gravity of the case during arguments.
“We’ve not seen this in American law before, it is a real risk to see it in this case,” he said. “That’s why we’re fighting so hard to defend Colorado’s civil rights.”
Colorado Sun reporter Elliott Wenzler contributed to this report.