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The court's conservative majority seemed to sympathize with a designer who argues she has a legal right to turn away same-sex couples who seek wedding websites.
The U.S. Supreme Court appeared sympathetic to a web designer who wants to turn away same-sex couples when it heard oral arguments in her case Monday.
Lorie Smith, owner of 303 Creative in Colorado, wants to expand her wedding website business but says her conservative Christian beliefs won't allow her to celebrate same-sex couples -- and that designing websites for them would be a celebration and would interfere with her rights to freedom of religion and speech. She seeks to include a statement on her website that she will not serve same-sex couples.
She filed suit in 2016 challenging Colorado's LGBTQ-inclusive nondiscrimination law. She lost at the federal district court and appeals court levels. The Supreme Court agreed in February to hear her case but only on the free speech claim.
In oral arguments in the case, 303 Creative LLC v. Elenis, Kristen Waggoner, the Alliance Defending Freedom attorney representing Smith, said her client "believes opposite-sex marriage honors Scripture and same-sex marriage contradicts it."
Justice Clarence Thomas, an outspoken opponent of LGBTQ+ rights, asked if the case was "ripe," as Smith has not yet gone into the wedding business and therefore has not turned away same-sex couple away. Waggoner said it is indeed ripe, as "her client is ready to get into the business but is being chilled," The New York Times reports.
Justice Elena Kagan, one of the court's three liberals, noted that wedding websites usually aren't particularly religious in nature, but Waggoner said that simply creating such a site is an expression of speech. Justice Sonia Sotomayor, another liberal, asked if under Smith's reasoning, could a wedding service provider legally turn away interracial couples? "It's highly unlikely," Waggoner answered. Sotomayor said several times, though, that the reasoning of the case would lead to discrimination against a wide variety of people.
When lawyers for the state of Colorado went into their argument, Thomas told them he saw a distinction between creating a website, which is expressive behavior, and simply providing a service. "This is not a hotel. This is not a restaurant. This is not a riverboat or a train," he said.
Colorado Solicitor General Eric Olson, in response to a question by conservative Justice Samuel Alito, said a web designer would be free to include a statement on their site that they believe marriage should be limited to opposite-sex couples, as long as they serve same-sex couples equally.
Alito also asked Olson if opposition to interracial marriage is comparable to opposition to same-sex marriage, and Olson said it is. The newest justice, Ketanji Brown Jackson, said "she's 'perplexed' by the questions that attempt to draw a distinction between discrimination that's based on sexual orientation and discrimination based on race," the Times reports.
The justices brought up all sorts of hypothetical situations, such as if a photographer who wanted to pay homage to the 1946 film It's a Wonderful Life could legally exclude Black children from the picture, as the film had a largely white cast, or if a Black man working as a mall Santa could refuse to be photographed with a child in a Ku Klux Klan outfit, The Washington Post notes.
Justice Neil Gorsuch, a conservative appointed by Donald Trump, seemed to approve of Waggoner's argument that forcing business owners to be trained on state antidiscrimination law amounted to "reeducation." That happened to Colorado baker Jack Phillips, who had refused to create a custom wedding cake for a same-sex couple and sued after the state found he had violated the law. He won a measured victory at the Supreme Court in 2018; he was represented by the ADF as well.
The court has a 6-3 majority of conservatives, and they appeared prepared to rule in Smith's favor, according to the Times and other major news outlets. "But several justices leaning in that direction appeared to be searching for limiting principles so as not to upend all sorts of anti-discrimination laws," the Times notes.
The three liberals -- Kagan, Sotomayor, and Jackson -- sympathized with Colorado. Sotomayor said that if the court ruled in Smith's favor, it would be the first decision allowing a business to "refuse to serve a customer based on race, sex, religion or sexual orientation," Reuters reports.
A ruling in the case will probably not be released until June, according to the Times.
