The Supreme Court’s conservative majority on Monday sounded 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 the 1st Amendment rights of a business owner and a state anti-discrimination law that gives customers a right to equal service without regard to their race, religion, gender or sexual orientation.
The outcome could cut out a hole in the laws of California and 21 other mostly blue states that directly forbid discrimination against LGBTQ customers.
Several justices, however, expressed interest in finding a narrow ruling that could bolster the 1st Amendment rights of some business owners, without creating a broad new free-speech loophole that would open the door to increased discrimination on the basis of sexual orientation, race, gender, disability or other legally protected characteristics.
During more than two hours of argument, the justices sounded split along the usual ideological lines.
The case was brought by Lorie Smith, a website designer seeking to expand her business to include weddings. But she filed suit against the state of Colorado seeking assurances that she need not work with a same-sex couple seeking such a wedding website.
In their legal brief, Smith’s lawyers argued 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, “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.”
The three liberal justices largely dismissed her claim, defending the principle of civil rights and equal treatment for all. They said the court should be wary of granting a new constitutional right to discriminate.
“What’s the limiting line” for the proposed free-speech right to deny service?, asked Justice Sonia Sotomayor. “How about people who don’t believe in interracial marriage or about people who don’t believe that disabled people should get married?”
The liberal justices also questioned why a standard wedding website template — including details about the couple, the event venue, nearbly hotels and gift registry — should be seen as expressing the views of the website designer, rather than the couple. Why is that speech?, asked Justice Elena Kagan.
Smith’s attorney argued that even if the website design for a same-sex couple was nearly identical to one provided to an opposite-sex couple — with only changes for the names and logistical details — the context would be different and therefore compel her client to express something she did not support.
“Context changes meaning,” said Kristen Waggoner, senior counsel at Alliance Defending Freedom.
The six conservatives said the 1st Amendment has long protected Americans from being forced to express views or promote causes they disagree with. And that principle can extend to a website designer who says working to celebrate a gay wedding would conflict with her Christian faith, they said.
Justices Neil M. Gorsuch and Brett M. Kavanaugh suggested 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 said that only a small number of businesses could qualify for such an exemption. He said hairstylists, tailors, jewelers, caterers and restaurants probably would not qualify under the 1st Amendment’s protection for free speech.
He said the case “comes down to a fairly narrow question of, how do you characterize website designers? Are they more like the restaurants and the jewelers and the tailors, or they more like the publishing house or other free speech analogues?,” he said.
Justice Amy Coney Barrett agreed that the right to free speech would protect someone who is designing websites that celebrate weddings.
“Why isn’t it compelled speech?,” she asked Eric Olson, the state solicitor general of Colorado, who was defending the state’s anti-discrimination law.
Olson warned that giving Smith the ability to reject all same-sex customers seeking her wedding services would be creating a “license” to discriminate.
He said businesses are free to sell certain products and not others, but they may not discriminate against customers because of their race, religion or sexual orientation.
For example, a store that sells Christmas items need not sell gifts for Hanukkah as well. But “the Christmas store may not announce ‘No Jews allowed’,” he said.
“The free speech clause exemption the company seeks here is sweeping because it would apply not just to sincerely held religious beliefs, like those of the company and its owner, but also to all sorts of racist, sexist and bigoted views,” he told the court.
Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr., who dissented in 2015 when the court upheld a right to gay marriage, have regularly voted to uphold religious liberty claims from conservative Christians.
Smith previously lost her case 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.”
A ruling is likely to come in June.
The high court has heard similar disputes in the past, mostly involving claims of religious liberty. In none of those rulings did it decide that business owners with strong religious convictions have a constitutional right to discriminate against same-sex weddings.
The current case, however, is not based on religious freedom but solely on free speech.
In recent years, Alliance Defending Freedom, the 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 included a baker of wedding cakes, a wedding photographer, a florist and, now, a website designer.
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.”