Supreme Court Backs Web Designer Opposed to Same-Sex Marriage


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The Supreme Court sided on Friday with a web designer in Colorado who said she had a First Amendment right to refuse to design wedding websites for same-sex couples despite a state law that forbids discrimination against gay people.

Justice Neil M. Gorsuch, writing for the majority in a 6-3 vote, said that the First Amendment protected the designer, Lorie Smith, from being compelled to express views she opposed.

“A hundred years ago, Ms. Smith might have furnished her services using pen and paper,” he wrote. “Those services are no less protected speech today because they are conveyed with a ‘voice that resonates farther than it could from any soapbox.’”

The case, though framed as a clash between free speech and gay rights, was the latest in a series of decisions in favor of religious people and groups, notably conservative Christians.

The decision also appeared to suggest that the rights of L.G.B.T.Q. people, including to same-sex marriage, are on more vulnerable legal footing, particularly when they are at odds with claims of religious freedom. At the same time, the ruling limited the ability of governments to enforce anti-discrimination laws.

The justices split along ideological lines, and the two sides appeared to talk past each other. The majority saw the decision as a victory that safeguarded the First Amendment right of artists to express themselves. The liberal justices viewed it as something else entirely — a dispute that threatened societal protections for gay rights and rolled back some recent progress.

In an impassioned dissent, Justice Sonia Sotomayor warned that the outcome signaled a return to a time when people of color and other minority groups faced open discrimination. It was the second time this week that the justice summarized her dissent from the bench, a rare move that signals deep disagreement. Appearing dismayed, Justice Sotomayor spoke for more than 20 minutes.

“This case cannot be understood outside of the context in which it arises. In that context, the outcome is even more distressing,” she wrote in her dissent. “The L.G.B.T. rights movement has made historic strides, and I am proud of the role this court recently played in that history. Today, however, we are taking steps backward.”

President Biden called the court’s decision “disappointing” in a statement released Friday.

“I’m deeply concerned that the decision could invite more discrimination against L.G.B.T.Q.I.+ Americans,” Mr. Biden said in the statement. “More broadly, today’s decision weakens longstanding laws that protect all Americans against discrimination in public accommodations — including people of color, people with disabilities, people of faith, and women.”

A Colorado law forbids discrimination against gay people by businesses open to the public as well as statements announcing such discrimination. Ms. Smith, who has said that her Christian faith requires her to turn away same-sex couples seeking website design services, has not yet begun her wedding business. Nor has she posted a proposed statement on her current website about her policy and beliefs for fear, she has said, of running afoul of the law.

So she sued to challenge it, saying it violated her rights to free speech and the free exercise of religion.

Colorado’s attorney general, Phil Weiser, warned of the ruling’s implications, saying that it would pave the way for all sorts of businesses to turn away L.G.B.T.Q. customers.

“This deeply concerning opinion is far out of step with the will of the American people and American values,” Mr. Weiser said in a statement.

During a news conference shortly after the ruling was issued, Ms. Smith, her voice cracking with emotion, described the outcome as a “victory not just for me but for all of us.”

The court “affirmed today that Colorado can’t force me or anyone to say something we don’t believe,” she said.

In the majority opinion, Justice Gorsuch wrote that the government could not force people who speak for pay on a given topic to accept commissions on that topic in cases where they disagree with the underlying message.

Such an approach, he said, could lead to bizarre results. He cited the example of a Muslim movie director being forced to “make a film with a Zionist message,” or an atheist being forced to accept a commission to create a mural “celebrating evangelical zeal.”

“Taken seriously, that principle would allow the government to force all manner of artists, speechwriters and others whose services involve speech to speak what they do not believe on pain of penalty,” Justice Gorsuch wrote. “Countless other creative professionals, too, could be forced to choose between remaining silent, producing speech that violates their beliefs, or speaking their minds and incurring sanctions for doing so.”

He added that states could not use public accommodation laws to deny speakers the right to choose the content of their messages. Otherwise, he wrote, “the better the artist, the finer the writer, the more unique his talent, the more easily his voice could be conscripted to disseminate the government’s preferred messages. That would not respect the First Amendment; more nearly, it would spell its demise.”

In her dissent, Justice Sotomayor described public accommodation laws as designed to ensure “equal dignity in the common market.” She cited a landmark 1964 Supreme Court case, Heart of Atlanta Motel Inc. v. United States, where the court found that hotels did not have the right to discriminate against Black guests.

“If you have ever taken advantage of a public business without being denied service because of who you are, then you have come to enjoy the dignity and freedom that this principle protects,” she wrote. “Lesbian, gay, bisexual, and transgender (L.G.B.T.) people, no less than anyone else, deserve that dignity and freedom.”

Justice Gorsuch responded directly to the dissent in the majority opinion, writing that the two sides looked at the same case and saw totally different issues.

“It is difficult to read the dissent and conclude we are looking at the same case,” he wrote. The dissenting justices, he wrote, focused on “the strides gay Americans have made towards securing equal justice under law.”

But the conservative justices did not see the case through that lens, he said, writing that “none of this answers the question we face today: Can a state force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?”

When the Supreme Court agreed to hear the case, 303 Creative L.L.C. v. Elenis, No. 21-476, it agreed to decide only one question: “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”

A divided three-judge panel of the U.S. Court of Appeals for the 10th Circuit, in Denver, had applied the most demanding form of judicial scrutiny to the Colorado law but upheld it.

“Colorado has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace,” Judge Mary Beck Briscoe wrote for the majority, adding that the law is narrowly tailored to address that interest.

“To be sure,” Judge Briscoe wrote, “L.G.B.T. consumers may be able to obtain wedding-website design services from other businesses; yet, L.G.B.T. consumers will never be able to obtain wedding-related services of the same quality and nature as those that appellants offer.”

Judge Briscoe added that “Colorado may prohibit speech that promotes unlawful activity, including unlawful discrimination.”

In dissent, Chief Judge Timothy M. Tymkovich, citing the writer George Orwell, said “the majority takes the remarkable — and novel — stance that the government may force Ms. Smith to produce messages that violate her conscience.”

This theme appeared to resonate with Justice Gorsuch, who adopted the language of George Orwell in his opinion.

He wrote that the court’s liberal justices had abandoned “what this court’s cases have recognized time and time again: A commitment to speech for only some messages and some persons is no commitment at all.”

He added, citing Orwell from “The Freedom of the Press,” an essay he wrote in 1945 as the intended preface for “Animal Farm” but was not published until 1972 by The Times Literary Supplement: “If liberty means anything at all, it means the right to tell people what they do not want to hear.”

Justice Sotomayor said in her dissent that the conservative justices had misread the issue: “The majority’s repeated invocation of this Orwellian thought policing is revealing of just how much it misunderstands this case.”

The Supreme Court considered a similar dispute in 2018 after a Colorado baker refused a create a custom wedding cake for a same-sex marriage. But that case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, failed to to yield a definitive ruling.

Justice Anthony M. Kennedy, who wrote the majority opinion in the 7-to-2 decision in 2018, seemed unable to choose between two of his core commitments. He was the author of every major Supreme Court decision protecting gay rights under the Constitution. But he was also the court’s most ardent defender of free speech.

Instead of choosing between those values, Justice Kennedy chose an off ramp that not everyone found convincing. He wrote that the baker, Jack Phillips, should win because he had been treated unfairly by members of a civil rights commission who had made comments hostile to religion.

The court’s membership has changed since then, with the retirement of Justice Kennedy and the death of Justice Ruth Bader Ginsburg. Their successors, Justices Brett M. Kavanaugh and Amy Coney Barrett, shifted the court to the right.

Lower courts have generally sided with gay and lesbian couples who were refused service by bakeries, florists and others, ruling that potential customers are entitled to equal treatment, at least in parts of the country with laws forbidding discrimination based on sexual orientation.

The owners of businesses challenging those laws have argued that the government should not force them to choose between the requirements of their faiths and their livelihoods. Their opponents say that businesses open to the public must provide equal treatment to potential customers.

Zach Montague contributed reporting.


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