Activists gather outside the U.S. Supreme Court, as justices were set to hear arguments in a major case pitting LGBT rights against a claim that the constitutional right to free speech exempts artists from anti-discrimination laws in a dispute involving an evangelical Christian web designer who refuses to provide her services for same-sex marriages, in Washington, U.S., December 5, 2022.
Kevin Lamarque | Reuters
The Supreme Court heard arguments Monday in a case involving a Colorado web design company whose desire to avoid doing work for same-sex weddings runs afoul of the state’s public accommodation anti-discrimination law.
Conservative justices appeared sympathetic to First Amendment arguments made by a lawyer for the design company’s owner. But liberal justices clearly feared that a ruling on her behalf would crack open the door to legalizing businesses denying goods and services not just to LGBTQ people, but also to other minority groups.
The court will likely decide the case by next spring or early summer. Conservatives hold six of the nine justice seats on the bench.
“What’s the limiting line of yours?” Justice Sonia Sotomayor asked Kristen Waggoner, the lawyer for company owner Lorie Smith, an evangelical Christian opposed to gay marriage.
“How about people who don’t believe in an interracial marriage?” asked Sotomayor, a liberal, as she sat feet away from conservative Justice Clarence Thomas, a Black man who is married to a white woman.
“Or about people who don’t believe that disabled should get married? Where’s the line?” she asked. “I choose to serve whom I want to disagree with, their personal characteristics like race or disability? I can choose not to sell to those people?”
Waggoner objected to that idea.
“I’m not saying that at all,” Waggoner said.
The lawyer argued that Colorado’s law would force Smith to engage in speech by creating a website for weddings that she objects to personally. Waggoner contended that compulsion violates the First Amendment of the Constitution, which protects the right to speech.
“Every page [of the website] is my client’s message,” Waggoner said.
“The announcement of the wedding itself is a concept that she believes to be false,” the lawyer said.
Thomas, while questioning Colorado Solicitor General Eric Olson, who was defending the state’s law, suggested that Smith’s argument for refusing to create content for people in a protected class is what makes the case different from other businesses refusing to accept minorities as customers.
“This is not a hotel. This is not a restaurant. This is not a riverboat or a train,” Thomas noted to Olson. “I’m interested in the intersection of public accommodations law and speech.”
Olson conceded that what “we don’t see over the long history of public accommodation laws in this country is people raising First Amendment speech objections to those laws.”
Olson added, “What we don’t see is a history of public accommodation laws carving out speech. They all are laws of general applicability that apply to all those operating a trade to the public. They don’t say ‘except those engaged in expressive conduct.'”
The lawyer argued that “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,” Olson said.
Justice Samuel Alito, another conservative, picked up a line of hypothetical questioning raised by liberal Justice Ketanji Brown Jackson, who is Black, about a Santa Claus at a mall refusing to take photos with Black children.
“So if there’s a Black Santa at the other end of the mall, and he doesn’t want to have his picture taken with a child who’s dressed up in a Ku Klux Klan outfit, that Black Santa has to do that?” Alito asked.
Olson replied, “No, because Ku Klux Klan outfits are not protected characteristics under public accommodation laws.”
Justice Elena Kagan then said, “And presumably that would be the same Ku Klux Klan outfit, regardless if the child was Black or white or any other characteristic.”
Alito then cracked, “You do see a lot of Black children in Ku Klux Klan outfits, right? All the time,” which sparked some laughter in the courtroom.