The Supreme Court is struggling to draw a line between two kinds of rights: those afforded to gay people and protections for free speech.
Yesterday, the justices heard a highly anticipated case about whether a Colorado website designer who opposes same-sex marriage should be compelled to serve gay couples.
The designer, Lorie Smith, said she wanted to expand her business to offer wedding sites. But she did not want to peddle her wedding services to gay clients, based on her religious beliefs. She worried that she would run afoul of Colorado state law, which prohibits businesses from discriminating based on sexual orientation. So she sued state officials, claiming that forcing her to provide services to gay couples amounted to endorsing their marriages and violated her free speech rights.
Both sides argue that the case could have big consequences. Smith’s supporters say a decision against her would allow the government to compel speech the speaker does not agree with — a First Amendment violation. Her opponents say that a ruling in her favor would effectively legalize all kinds of discrimination currently prohibited against certain classes, including races or disabilities, under the guise of free speech.
The court heard a similar case in 2017, about a bakery that, by happenstance, is also in Colorado. But the justices then were more closely divided than the current court, and they issued a narrow ruling that did not settle the bigger issues. Now that the court is controlled by a 6-to-3 conservative majority, it seems more likely to take decisive action — and rule in favor of Smith, said my colleague Adam Liptak, who covers the court.
A slippery slope
Under Colorado’s law, businesses serving the public cannot turn away customers based on their race or sexual orientation, among other protected characteristics. A baker can refuse to make doughnuts for anyone at all. But if a baker says he will make doughnuts only for white people, that is illegal discrimination.
But what if the business’s work is meaningfully expressive, as a website can be? Justice Elena Kagan, a liberal, pointed to one example: A site creator may be comfortable with a design that says “God bless this union” for straight couples but not for gay couples. If the law compels her to offer that design to gay couples, it could amount to forcing her to express views that she disagrees with.
That example gets at a core issue in the case: Is Smith discriminating against gay people or is she refusing to support same-sex marriage in any way? The answer is the difference between a case more about nondiscrimination laws or one more about free speech rights.
The problem for Smith’s supporters is that a similar free speech argument could be used to allow other kinds of discrimination. A white wedding photographer who refuses to serve Black or mixed-race couples could say that they are against interracial marriage. A Black videographer could do the same to white or mixed couples. Or a band could turn away couples with disabilities because of eugenic views.
At yesterday’s hearings, the conservative justices especially struggled with the risk of a ruling that allows other kinds of discrimination. No clear solution emerged on how to draw the line. “It’s genuinely a difficult problem for them,” Adam told me.
It is possible that the court punts on the issue, as it did in the Colorado bakery case. Justice Clarence Thomas, a conservative, began yesterday’s hearings by asking whether the case was truly “ripe,” or ready for the court to weigh in, given that Smith had not actually started her wedding website business yet.
But a punt by the justices is unlikely, Adam said: “They knew those issues were in the case before they took it.”
The question, then, could be how the conservative majority draws a line between all the thorny issues that a ruling in Smith’s favor would present.
The court’s conservative majority seems prepared to rule that Smith has a right to refuse to create websites celebrating same-sex weddings.
Two justices joked about hypothetical scenarios involving dating websites and a Black mall Santa Claus.
Justices will hear arguments tomorrow in a case that could drastically increase the power that state legislatures have over voting issues.
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