Supreme Court hears free speech case of artist who objects to same-sex weddings

Lorie Smith Lorie Smith, owner and founder of 303 Creative, at the U.S. Supreme Court in Washington, D.C. | Credit: Alliance Defending Freedom

The Supreme Court’s conservative majority on Monday appeared to side with a Colorado graphic artist and website designer who refuses to provide creative services that she says conflict with her Christian faith, including ones that celebrate same-sex weddings.

The Supreme Court heard oral arguments in Lorie Smith’s case303 Creative LLC v. Elenis — for nearly two and a half hours. The case centers on the question of “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”

Public-accomodation laws apply to businesses that sell or provide services to the general public. Among other things, Colorado law considers it discriminatory and unlawful for a person “directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”  

Represented by Alliance Defending Freedom (ADF), Smith says that her case concerns the freedom of speech for all artists. The 38-year-old from the Denver metro area is challenging her state’s anti-discrimination law that she says would compel her to use her artistic talents, or speech, to create messages celebrating same-sex weddings. 

At the same time, Colorado argues that the case is one about discrimination: If someone sells a product in the public sphere, he or she has to sell it to all people. 

“What I get is that you’re making a tiny sliver of an argument,” Justice Samuel A. Alito told Eric R. Olson, Colorado’s solicitor general, after Olson agreed that a designer could place anything he or she wants on a standardized website even if it includes a denunciation of same-sex marriage.

Smith previously stressed to CNA that she serves everyone, including clients who identify as LGBT, even though she cannot support every message.

“It’s not who, but it is a what,” Justice Neil M. Gorsuch said, bringing up a hypothetical where a freelance writer might be asked to write a press release with religious views he or she disagrees with. He also asked about the difference between selling a product that has already been created — and one that will be custom-made. 

Her case challenges Colorado officials, including Aubrey Elenis, the director of the Colorado Civil Rights Division. 

While weighing the case, justices on both sides explored the lines or boundaries of the arguments on both sides — asking one question after another and, at times, speaking over one another. They ran well over the 70 minutes allotted for arguments.

Nearly every justice raised hypothetical situations.

Liberal justices, such as Justice Sonia Sotomayor, challenged the arguments made by Kristen Waggoner, general counsel and head of ADF, on behalf of Smith. Sotomayor raised the question of discrimination against interracial couples or those with disabilities, asking “where’s the line?” 

A wedding website, Sotomayor added, expressed a couple’s message, rather than the designer’s message.

“I go to a wedding website,” Sotomayor proposed to Waggoner. “It’s something that I send, meaning you, your client, I send it to my family and friends or Lilly and Luke send it to their family and friends. You don’t send it. They go to this website. You’re not inviting them to the wedding. Lilly and Mary are. So how does it become your message?”

Justice Ketanji Brown Jackson raised the hypothetical of a photography business in the mall that wants to shoot particular Santa scenes with only white children to create an “authentic” theme for the “It’s a Wonderful Life” film.

Justice Elena Kagan raised the hypothetical of selling the same exact website to a heterosexual couple and a same-sex couple — and a gay couple walking in and asking for a “God blesses this union” placed on their website.

Arguing for Colorado, Olson warned against siding with 303 Creative.

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“The free-speech clause exemption the company [303 Creative] 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,” he said.

In agreement, Brian H. Fletcher, the deputy solicitor general for the Department of Justice, said of Waggoner’s argument: “It means that any provider of expressive services is entitled to put up a sign saying we do not serve people with particular characteristics whenever they believe that serving those people would change their message.”

In her rebuttal, Waggoner emphasized the root of her argument.

“One need not agree with a particular belief to affirm that law-abiding people have a right to speak their conscience, including on a controversial subject like marriage,” she concluded. “And that noble principle is rooted in love of neighbor, extending the same rights to others that we want for ourselves.”

She added: “This right to be free from government coercion of speech is also foundational to our self-government and to the free and fearless pursuit of truth.”

Smith’s case is similar to 2018’s Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which a bakery rejected making a cake for a same-sex wedding because of its owner’s religious beliefs. The Colorado Civil Rights Commission argued that this was an instance of unjust discrimination, but the Supreme Court ruled the commission “showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating” the owner’s objection.

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