WASHINGTON — The Supreme Court will hear arguments Monday on whether a Colorado graphic designer has the First Amendment right to refuse to create websites celebrating same-sex marriages based on her Christian faith despite a state law that prohibits discrimination based on sexual orientation.
The case, a follow-up to a 2018 one involving a Colorado baker who has not issued a final decision, is likely to settle the question of whether businesses open to the public and engaged in expression can refuse to provide services. services to potential customers based on their religion. or other convictions.
The case concerns Lorie Smith, owner of a design firm that says it serves gay clients but intends to limit a proposed marriage-related service to celebrations of heterosexual unions. She argued that forcing her to provide these services to gay and lesbian couples violates her right to free speech.
“If asked by a client who identifies as gay to design graphics for his animal shelter or promote an organization serving children with disabilities, Smith would happily do so,” Ms Smith’s lawyers told the judges in a statement. memory. “But Smith will refuse any request – no matter who makes it – to create content that contradicts the truths of the Bible, demeans or disparages anyone, promotes atheism or gambling, endorses the taking of unborn life, incites to violence or promotes a concept of marriage that is not just the union of a man and a woman.
A Colorado law prohibits discrimination based on sexual orientation by businesses open to the public as well as statements announcing such discrimination. Ms Smith, who did not start the wedding business or publish such a statement for fear of breaking the law, has filed a lawsuit challenging it.
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Philip J. Weiser, Colorado’s attorney general, told the justices in a brief that there was nothing concrete for the Supreme Court to decide. “There is no evidence on file,” he wrote, “that anyone asked the company to create a gay marriage website; that Colorado threatened to enforce the law; or that any future wedding website would convey a message that would be attributed to the business.
In any event, he wrote, the Colorado law was constitutional. A contrary decision, he said, would have unacceptable consequences.
“A company could, based on its claimed beliefs, refuse to cook for Catholic baptisms because it is pro-choice, photograph Black family reunions because it opposes racial equality, or create floral arrangements for events celebrating women’s business achievements because she believes only men should work outside the home,” Mr. Weiser wrote in another memoir.
Lower courts have generally sided with gay and lesbian couples who have been denied service by bakeries, florists and the like, ruling that potential customers are entitled to equal treatment, at least in some parts of the country where laws prohibit discrimination based on sexual orientation.
Business owners challenging these laws have argued that the government should not force them to choose between the demands of their religion and their livelihoods. Their opponents argue that businesses open to the public must offer equal treatment to potential customers.
The case before the judges, 303 Creative LLC v. Elenis, n° 21-476, is a challenge to freedom of expression which only incidentally concerns religion.
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Ms. Smith’s lawyers had also asked the Supreme Court to decide whether the Colorado law violated her right to free exercise of her religion and to consider whether to overturn an important precedent from 1990, Employment Division v. Smith.
In that case, the Supreme Court ruled that neutral laws of general application could not be challenged on the basis that they violated the First Amendment’s protection of the free exercise of religion.
The ruling, stemming from a case involving the use of peyote in Native American religious ceremonies, is unpopular among conservative Christians, who say it does not provide adequate protection for the religion, and with some judges. Last year, the three most conservative members of the court — Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — said it was time to overturn the 1990 ruling.
In the new Colorado case, however, the court limited its review to whether the Colorado law violates the First Amendment’s protection of free speech.
The specific question the judges have agreed to decide in the new case is “whether applying a public accommodation law to compel an artist to speak or remain silent violates the freedom of speech clause of the First Amendment”.