The Supreme Court’s conservative majority sounded Monday ready to rule that a Christian website designer has a free-speech right to refuse to work with same-sex couples planning to marry.
The justices heard arguments in a Colorado case that posed a conflict between a business owner’s 1st Amendment rights and a state anti-discrimination law that requires business to provide equal service to all, without regard to race, religion, gender or sexual orientation.
The court’s three liberals argued against giving a broad exemption to business owners who refuse to work with same-sex couples.
But the court’s conservatives questioned how the law can require people to write messages or promote causes they disagreed with.
In the case before the court, Lorie Smith, a website designer, said she would not work with same-sex couples because her Christian faith opposes such marriages.
Justices Neil M. Gorsuch and Brett M. Kavanaugh suggested that the court could rule narrowly, but uphold the principle that people in business cannot be forced to promote messages they oppose.
“She is willing to sell to everyone, but she won’t do a website that celebrates something that offends her religious beliefs,” Gorsuch said.
Kavanaugh suggested that only a small number of businesses could qualify for such an exemption. He said tailors, jewelers or caterers are probably not covered because their work is not purely expressive.
But the work of a website designer “involves speech,” he said, and therefore can be protected under the 1st Amendment.
Justice Amy Coney Barrett said she too agreed that the right to free speech would protect someone who is designing websites that celebrate weddings.
A ruling in the case is likely to come in June.
Twenty-two states including California require businesses open to the public to provide full and equal service to all, without regard to race, religion, gender or sexual orientation.
Though the high court has heard similar disputes in the past, it has not declared that business owners with strong religious convictions have a constitutional right to discriminate against same-sex weddings.
In recent years, the Alliance Defending Freedom, an advocacy group based in Arizona, backed a series of lawsuits on behalf of Christians in business who refuse to take any part in gay weddings. They include a baker of wedding cakes, a wedding photographer, a florist and, now, a website designer.
Smith says she would like to expand her business designing websites to include weddings, but only if she can be assured she need not work with a same-sex couple. She sued seeking such a right and lost before a federal judge and the 10th Circuit Court in Denver.
Justices voted in February to hear her appeal in the case of 303 Creative vs. Elenis and decide whether it violates the free-speech clause of the 1st Amendment to “compel an artist to speak or stay silent.”
Her lawyers argue she does not seek a right to discriminate against gay people in every instance, but only wants the right to avoid being required to — in her view — express support for same-sex marriages that contradict her religion.
She “is willing to create custom websites for anyone, including those who identify as LGBT,” they wrote in their brief, “provided their message does not conflict with her religious views. But she cannot create websites that promote messages contrary to her faith, such as messages that condone violence or promote sexual immorality, abortion, or same-sex marriage.”
Lawyers for Colorado and the Justice Department disputed that claim. They said a refusal to work with same-sex couples planning a wedding is discrimination based on sexual orientation and does not involve speech.
They said a gay couple might ask Smith “to provide them with a website using a design she has already created for other clients and merely substituting the couple’s names and the logistical details of their wedding,” they said. Refusing them would be discrimination against the couple, not a speech restriction, they argued.
Four years ago, the court was divided over a similar case involving a baker of wedding cakes. Shortly before he retired, Justice Anthony M. Kennedy spoke for the court in the Masterpiece Cakeshop case and said the baker and his religious beliefs had been treated unfairly by the state civil rights commission.
But that was a narrow opinion that did not decide whether the baker had a free speech right not to make a wedding cake for a same-sex couple.
Since then Kavanaugh and Barrett have joined the court, creating a strong conservative majority.
Civil rights advocates fear that a ruling in favor of the right to discriminate in the new Colorado case could trigger more discrimination against LGBTQ customers.
“Every one of us is entitled to be treated as an equal member of our community when seeking goods or services in the commercial marketplace,” said Jennifer C. Pizer, chief legal officer for Lambda Legal in Los Angeles. “Any ruling that allows our precious free speech rights to be twisted into tools for discriminatory exclusion would mock the Constitution’s promises of equality in public life. Depending on the outcome of this case, the door could be flung open for escalating discrimination, including in areas such as medical services, lodging, and transportation.”
