Supreme Court confronts again case in which free speech conflicts with LGBTQ rights

Washington — When the Supreme Court meets for oral argument on Monday, it will face an issue it has previously had to resolve in lawsuits involving bakers, a florist and now a web designer.

And with the latest case coming up, brought by graphic designer Lorie Smith, Colorado is once again the battleground in a dispute between First Amendment right to free speech and LGBTQ rights.

Smith, as bakers Jack Phillips and Aaron and Melissa Kleinand florist Baronelle Stutzman before her, is a Christian entrepreneur who says her religious beliefs keep her from creating custom websites for same-sex marriage. But her refusal could violate Colorado’s public lodging law, which prohibits businesses open to the public from denying service because of sexual orientation and announcing their intent to do so.

Smith argues that the law violates her First Amendment rights, saying the state is forcing her to express a message she disagrees with.

“If the government can censor and enforce my speech, it can censor and enforce anyone’s speech,” she told CBS News. “We should all be free to live and work according to our deeply held beliefs.”

The Supreme Court last faced a case at the intersection of the First Amendment and LGBTQ rights in 2018, in a dispute involving Phillips, who refused to bake a cake for a same-sex marriage a decade ago. The baker, who owns Masterpiece Cakeshop in Lakewood, Colorado, argued that the state’s public housing law, which requires him to make a cake for a same-sex marriage, would violate his right to freedom of speech and religion. violate.

The Supreme Court reigned narrowly for Phillips, finding the Colorado Civil Rights Commission hostile to his sincere religious beliefs. But it left unanswered the question of whether states like Colorado, by enforcing their anti-discrimination laws, can force an artist to utter a message they disagree with.

Smith’s case, known as 303 Creative LLC v. Elenis, may now be the means to address that issue.

“No one should be forced to create works of art, custom expressions that go against the core of who they are and what they believe. And that’s what Colorado does,” she said.

Gay rights of the Supreme Court
Web designer Lorie Smith is shown in her office on Monday, November 7, 2022 in southwest Littleton, Colorado.

David Zalubowski/AP

Smith started her web design company, 303 Creative, about a decade ago and emphasizes that every website she creates is unique and unique. With plans to expand her business to create custom wedding websites, Smith does not want to design gay wedding websites as gay marriage violates her religious beliefs, and wants to post a message on 303 Creative’s website revealing that she won’t do that.

Smith says she serves clients from a variety of backgrounds, and she insists she discriminate based on the message requested, not the person requesting it. For example, if a wedding planner asks Smith to create a same-sex wedding website, she will still object to the request.

“What’s unfortunate is that what I’m asking the court to protect is the right for everyone to speak up,” Smith said. “This not only protects me, it protects the LGBT web designer who should not be forced to communicate messages that go against their deeply held beliefs, and the right to speak up is guaranteed to all of us.”

Smith filed a lawsuit in 2016 to block enforcement of the state’s public lodging law against her. A federal district court sided with Colorado, and a divided panel of the U.S. Court of Appeals for the 10th Circuit affirmed, concluding that the law is narrowly tailored to Colorado’s overriding interest in ensuring equal access to publicly available goods and services.

Chief Judge Timothy Tymkovich, who disagreed, said state law coerced and suppressed Smith’s speech, and violated her right to freely practice religion.

“While I hate to refer to Orwell, majority opinion endorses substantial government interference in the areas of speech, religion and conscience,” he wrote.

Smith appealed to the Supreme Court in September 2021, asking the justices to decide whether applying an anti-discrimination law like Colorado’s to force a performer to speak, in violation of their religious beliefs, violates the clauses about freedom of speech or free exercise of the First Amendment.

The Supreme Court in February agreed to hear Smith’s case, but limited the issue to the issue of free speech.

Kristen Waggoner, who leads the Alliance Defending Freedom and will argue the case in the Supreme Court on Smith’s behalf, said limiting the question would allow the Supreme Court “to get to the heart of the matter more easily” whether the government could force people to say things they don’t believe.

“No one should be forced to express anything that goes against their beliefs on any issue,” she told CBS News. “Speakers don’t lose their rights simply because they try to make a living.”

Waggoner, who also argued Phillips’ case five years ago, noted that public housing laws and the First Amendment “have coexisted for many years,” with the rights of speakers protected.

Twenty Republican-leaning states signed on to a friend-of-the-court letter supporting Smith and telling the court that their interpretation of public accommodation laws demonstrates how to strike a balance between protecting performers’ speech by pressing allow message-based objections and prevent discrimination in the marketplace.

“Never in our history has the government ever forced ideological, political or religious expression,” Wagoner said. “This would be the first time.”

But Colorado officials who defend the law argue it’s necessary to ensure customers can participate equally in the market. Adopting Smith’s position, Attorney General Phil Weiser said in a filing to the court, “would include not only a company’s objections to serving certain customers motivated by genuine religious beliefs, but also objections motivated by through ignorance, caprice, bigotry, arbitrariness and more – including pure expressions of racial, sexist or anti-religious hatred.”

The state also argues that allowing a company to refuse services would break with the country’s longstanding tradition of protecting customers’ ability to purchase goods and services regardless of religion, race, disability and other protected characteristics .

The Biden administration backs Colorado in the dispute, telling the Supreme Court that the First Amendment does not entitle Smith to a categorical exemption from a law that protects against discrimination.

“So public accommodation laws sometimes incidentally require owners of expressive businesses to act in a manner inconsistent with their deeply held beliefs,” the Justice Department said in a court filing. “But under the precedents of this Court, those incidental charges are a permissible — indeed undisputed — result of a decision to offer expressive goods or services to the public.”

Both Smith and Colorado caution that a decision in favor of their respective opponents could be damaging and the consequences could be far-reaching.

For Smith and groups supporting her in the dispute, a ruling in favor of Colorado would force any performer or speaker to express messages they disagree with, they say.

“A lot [of these laws] have political ideology, political affiliation, as a protected class, meaning a Democrat should write a slogan for a Republican, or maybe a Muslim should write something for an evangelical church,” Wagoner said. “It really transcends the issue of marriage, and we hope that the court will reaffirm a basic principle that freedom of speech is for all.”

Colorado, she said, takes the position that “they have the power to force an artist to create a custom expression, and that should deeply concern all Americans, that a government could punish those they disagree with is because she disagrees with their position on an issue.”

But Weiser and states that support Colorado warn that a decision to support Smith would open the door to more discrimination.

“Every day, Coloradans buy the goods and services they need from companies that open their doors to the public. Many of these goods and services have deep meaning for their buyers: flowers for a husband’s funeral, family photos to celebrate the arrival of to celebrate a baby, a tailored suit to start a new job,” he told the court. “These customers don’t look, don’t love each other and don’t worship in the same way. But they all expect to participate in the public market as equals. A company that rejects these customers because of who they are harms them as they try to express their sadness, mark their joy, and improve their lives.”

Twenty-one Democratic-leaning states and the District of Columbia said in their own filing with the Supreme Court that Smith’s side could expose members of protected groups to discrimination in a “broad segment” of the market.

They wrote: “Instances abound of companies that might refuse to provide a service to customers based solely on the companies’ objection to some ‘message’ which essentially depends only on the identity of those customers: a bakery whose owner opposes mixed-race relations could refuse to bake wedding cakes for interracial couples; a real estate agency whose owner opposes racial integration might refuse to represent black couples seeking to buy a home in a predominantly white neighborhood; or a portrait studio whose owner is against interracial adoption, might refuse to take pictures of white parents with their black adopted children.”

A ruling from the Supreme Court is expected at the end of June.

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