The First Amendment allows a Colorado graphic designer to refuse to make wedding websites for same-sex couples, the U.S. Supreme Court ruled Friday in a decision that could have a sweeping nationwide impact.
The high court ruled for Littleton graphic artist Lorie Smith, who said her Christian faith and right to free speech prevent her from creating wedding websites for same-sex couples. Smith, who runs the business 303 Creative, wanted to advertise that she only would make wedding websites for straight couples.
She challenged Colorado’s public accommodation law, which says that if she offers wedding websites to the public, she must provide them to all customers. Businesses that violate the law can be fined, among other penalties. Most states have such laws.
Justice Neil Gorsuch authored the justices’ 6-3 decision, which found that Smith’s free speech rights mean Colorado cannot force Smith to say or create messages that she does not believe.
“The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees,” he wrote.
The majority of justices agreed with Smith’s attorneys, who argued that the public accommodation law violates her free speech rights by forcing her to create messages that go against her faith.
“If she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs, sanctions that may include compulsory participation in ‘remedial… training,’ filing periodic compliance reports, and paying monetary fines,” Gorsuch wrote. “That is an impermissible abridgment of the First Amendment’s right to speak freely.”
Colorado Attorney General Phil Weiser and other opponents contend that allowing businesses to pick and choose who to serve under a free speech claim opens the door to widespread discrimination against many groups of people.
“The principle that we are fighting for is that if you are a public business, you have to serve everybody, and you can’t engage in the practice that we’ve seen in our history: ‘No Jews allowed,’ ‘No Blacks allowed,’ etc.,” Weiser said in a news conference after the case was argued before the U.S. Supreme Court in December.
In a dissent joined by Justices Elena Kagan and Kentanji Brown Jackson, Justice Sonia Sotomayor called the ruling “profoundly wrong.”
“Today is a sad day in American constitutional law and in the lives of LGBT people,” she wrote. “The Supreme Court of the United States declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class. The Court does so for the first time in its history. By issuing this new license to discriminate in a case brought by a company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status. In this way, the decision itself inflicts a kind of stigmatic harm, on top of any harm caused by denials of service. The opinion of the Court is, quite literally, a notice that reads: ‘Some services may be denied to same-sex couples.’”
The majority found that Smith’s wedding websites are expressive speech that warrant broad First Amendment protections, said Christopher Jackson, an attorney at Holland and Hart. That expressive speech is different from routine commercial services, he said.
“The question would be, really is it speech versus is it ordinary commercial conduct?” he said. “I think even this court would say if you are a diner and you’re (refusing to serve) people food — like sit-ins in the ’60s — that is still a violation of the public accommodation law because there’s no expressive conduct in serving people food, so it doesn’t violate the First Amendment.”
But where the line is drawn on what is protected speech and what is discrimination is now tougher to know, he said.
“You can’t compel wedding websites, we know that now,” he said. “But what about renting a venue, providing tables and chairs, what about providing floral arrangements? …There’s just scenario after scenario and hypothetical after hypothetical, and I don’t think we know the answer.”
Smith’s case, 303 Creative LLC v. Elenis, is the second high-profile challenge to Colorado’s public accommodation law to pit religious beliefs against gay rights in recent years.
In 2018, baker Jack Phillips won a partial victory at the U.S. Supreme Court after he refused to make a wedding cake for a gay couple in 2012. Phillips has since refused to make a transgender transition cake; he was sued and most recently lost an appeal to the Colorado Court of Appeals, which upheld the state’s public accommodation law.
The narrow decision in Phillips’ 2018 U.S. Supreme Court case set up a return of the issue to the high court, and legal observers expected a much broader ruling with wider implications in the 303 Creative case.
The Associated Press contributed to this report.
This is a developing story and will be updated.
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Updated 8:30 a.m.: This story has been updated to correct the court’s vote in this case.
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