The Supreme Court sided with a Colorado web designer’s claim that the First Amendment entitles her to refuse commissions for same-sex wedding announcements, providing a victory for religious conservatives still smarting from the court’s 2015 ruling granting marriage equality to gay and lesbian couples.
Lorie Smith, an evangelical Christian who runs 303 Creative, a web-design company in Littleton, Colo., filed suit in 2016 to get a federal court order declaring her business exempt from state antidiscrimination law should any same-sex couple seek her services. A federal appeals court in Denver, like other federal and state courts confronting objectors to same-sex marriage, found no constitutional right to disregard state law requiring that businesses open to the public treat customers equally without regard to sexual orientation.
Writing for the court, Justice Neil Gorsuch said Smith’s First Amendment free-speech rights—in this case, the right to not express a view supportive of same-sex marriage—took priority over a Colorado law forbidding discrimination based on sexual orientation.
“The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands,” he wrote, joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh and Amy Coney Barrett.
The court’s three liberals dissented, arguing Smith’s actions rather than speech were at issue. “The act of discrimination has never constituted protected expression,” Justice Sonia Sotomayor wrote, joined by Justices Elena Kagan and Ketanji Brown Jackson.
In her appeal to the Supreme Court, Smith was represented by Alliance Defending Freedom, a conservative Christian advocacy group that also argued against same-sex marriage in the 2015 Obergefell v. Hodges decision. Smith said she views her work for hire as an artistic expression of her own beliefs rather than those of the client alone, and considers compliance with the antidiscrimination law as akin to the state compelling her to declare support for same-sex marriage.
The case involved a long-brewing contest between two lines of recent Supreme Court decisions: those that give priority to religious expression rights over secular public interests and those extending civil equality to LGBTQ Americans. Several cases posing that conflict have reached the court since the Obergefell decision, but at each juncture the justices either have turned down the appeal seeking exemption from nondiscrimination law, or issued a relatively narrow decision in favor of the objector to same-sex marriage without issuing a broader pronouncement on whose rights must yield.
At oral arguments in December, the court’s liberal and conservative wings read the court’s precedents to point to significantly different outcomes.
Jackson noted that the court paid no heed in the 1960s when segregationists raised religious objections laws and court orders prohibiting discrimination.
Some Southerners had opposed interracial marriage on religious grounds, but in the 1967 case of Loving v. Virginia, Chief Justice Earl Warren wrote that such prohibitions were “directly subversive of the principle of equality at the heart of the 14th Amendment.” In another unanimous decision, the court in 1968 dismissed as “patently frivolous” a South Carolina restaurant owner’s argument that permitting Black people to eat barbecue on premises “contravenes the will of God.”
Alito said opposition to same-sex marriage shouldn’t be compared with racial prejudice. When the court, over Alito’s dissent, found a constitutional right to same-sex marriage in 2015, the majority opinion spoke respectfully regarding those who held traditional moral beliefs opposed to such unions, he said. During the civil-rights era, in contrast, the court gave no credit to racist views when overturning segregation laws, he said.