By Jessica Gresko, The Associated Press and Elliott Wenzler, The Colorado Sun
WASHINGTON — In a defeat for gay rights, the Supreme Court’s conservative majority ruled on Friday that a Christian graphic artist who wants to design wedding websites can refuse to work with same-sex couples. One of the court’s liberal justices wrote in a dissent that the decision’s effect is to “mark gays and lesbians for second-class status” and that it opens the door to other discrimination.
The court ruled 6-3 for designer Lorie Smith despite a Colorado law that bars discrimination based on sexual orientation, race, gender and other characteristics. Smith had argued that the law violates her free speech rights.
Smith’s opponents warned that a win for her would allow a range of businesses to discriminate, refusing to serve Black, Jewish or Muslim customers, interracial or interfaith couples or immigrants. But Smith and her supporters had said that a ruling against her would force artists — from painters and photographers to writers and musicians — to do work that is against their beliefs.
Justice Neil Gorsuch, a Coloradan nominated to the court in 2017 by then-President Donald Trump, wrote for the court’s six conservative justices. He said that Colorado was forcing Smith “to speak in ways that align with its views but defy her conscience.”
“Abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider ‘unattractive’, ‘misguided, or even hurtful.’ But tolerance, not coercion, is our nation’s answer,” Gorsuch wrote. “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. Because Colorado seeks to deny that promise, the judgment is reversed.”
In a dissent, 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.” She was joined by the court’s two other liberals, Justice Elena Kagan and Justice Ketanji Brown Jackson.
Sotomayor said that the decision’s logic “cannot be limited to discrimination on the basis of sexual orientation or gender identity.” A website designer could refuse to create a wedding website for an interracial couple, a stationer could refuse to sell a birth announcement for a disabled couple, and a large retail store could limit its portrait services to “traditional” families, she wrote.
The decision is a win for religious rights and one in a series of cases in recent years in which the justices have sided with religious plaintiffs. Last year, for example, the court ruled along ideological lines for a football coach who prayed on the field at his public high school after games.
The decision is also a retreat on gay rights for the court. For two decades, the court has expanded the rights of LGBTQ people, most notably giving same-sex couples the right to marry in 2015 and announcing five years later that a landmark civil rights law also protects gay, lesbian and transgender people from employment discrimination. That civil rights law decision was also written by Gorsuch.
Even as it has expanded gay rights, however, the court has been careful to say those with differing religious views needed to be respected. The belief that marriage can only be between one man and one woman is an idea that “long has been held — and continues to be held — in good faith by reasonable and sincere people here and throughout the world,” Justice Anthony Kennedy wrote in the court’s gay marriage decision.
The court returned to that idea five years ago when it was confronted with the case of a Christian baker who objected to designing a cake for a same-sex wedding. The court issued a limited ruling in favor of the baker, Jack Phillips, saying there had been impermissible hostility toward his religious views in the consideration of his case. Phillips’ lawyer, Kristen Waggoner, of the Alliance Defending Freedom, also brought the most recent case to the court.
“Disagreement isn’t discrimination, and the government can’t mislabel speech as discrimination to censor it,” she said in a statement.
President Joe Biden said in a statement that he was deeply disappointed in the decision.
“When one group’s dignity and equality are threatened, the promise of our democracy is threatened and we all suffer,” he said. “Our work to advance equal rights for everyone will continue.”
Colorado Attorney General Phil Weiser, a Democrat whose office argued the 303 Creative case for the state, blasted the opinion.
“This deeply concerning opinion is far out of step with the will of the American people and American values,” Weiser said in a written statement. “The opinion represents a radical departure from decades of court precedent and fails to uphold the principle of ‘Equal Justice for All’ inscribed on the U.S. Supreme Court building.”
Weiser said in a news conference in downtown Denver that the “ruling promises to destabilize the public marketplace, enabling and encouraging all types of businesses — not just those who make website — to have a First Amendment right to refuse customers because of who they are.”
“We’re going to work hard — working within this opinion — to make sure we can and we will hold accountable those who engage in unlawful discrimination,” Weiser added.
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The attorney general also addressed recent reporting in The New Republic this week questioning whether Smith’s claim stemmed from an actual a request to create a wedding website. The magazine’s reporting suggested the request was fabricated.
“This was a made up case without the benefit of any real facts or customers,” Weiser said. “Unfortunately when you have hypothesized facts you don’t tend to get the same quality decisions because it gives the court a lot of leeway.”
Rex Fuller, the CEO of Center on Colfax, an LGBTQ community center in Denver, said at the news conference that “the court just said it’s okay to discriminate against anyone you don’t like as long you use your religion as an excuse.”
Colorado Gov. Jared Polis, the nation’s first openly gay governor, called the ruling “misguided.” State Rep. Brianna Titone, an Arvada Democrat and the first transgender person to serve in the Colorado General Assembly, said the ruling ” directly attacks the rights of LGBTQ Americans.”
“With one decision, the Court threatens decades of progress to secure the freedoms and rights of LGBTQ Americans, and has threatened the rights of Americans to equally and fairly access public accommodations,” Titone said in a written statement.
U.S. Sen. John Hickenlooper, a Colorado Democrat, said in a written statement that “this court is taking away rights that generations of Americans have enjoyed.”
“We’ve been here. We’ve settled this,” Hickenlooper said. “In Colorado, and across the country, you cannot discriminate against someone solely because of who they are or who they love. Period.”
State Rep. Matt Soper, R-Delta, said he was happy with the ruling.
“(I’m) pleased to see the Supreme Court reject compelling speech under Colorado state law, where such speech goes against a deeply held religious belief,” he said.
Smith, who owns a Colorado design business called 303 Creative, does not currently create wedding websites. She has said that she wants to but that her Christian faith would prevent her from creating websites celebrating same-sex marriages. And that’s where she runs into conflict with state law.
Colorado, like most other states, has a law forbidding businesses open to the public from discriminating against customers. Colorado said that under its so-called public accommodations law, if Smith offers wedding websites to the public, she must provide them to all customers, regardless of sexual orientation. Businesses that violate the law can be fined, among other things.
Smith argued that applying the law to her violates her First Amendment rights. The state disagreed.
The case is 303 Creative LLC v. Elenis, 21-476.
Colorado Sun staff writer Jesse Paul contributed to this report.