As they considered the most recent conflict between religious conservatives and LGBTQ rights, conservative Supreme Court justices on Monday appeared sympathetic toward an evangelical Christian web designer’s request to avoid working on same-sex weddings.
However, following a two-and-a-half-hour debate that featured a wide range of challenging hypothetical questions posed to both sides and improbable scenarios like a “Black Santa” at a mall refusing to serve kids wearing Ku Klux Klan garb, it is still unclear how the court, which has a 6-3 conservative majority, will rule.
Lorie Smith, a website designer from Colorado who opposes same-sex unions, is asking the state of Colorado to exempt her from the prohibition on discrimination based on sexual orientation in places of public accommodation.
In 2016, Smith filed a lawsuit against the state on the grounds that she preferred to work with couples planning opposite-sex nuptials but would turn down requests from same-sex couples for the same service. She contends that the First Amendment of the Constitution grants her the freedom of speech to reject creative work that runs counter to her personal beliefs.
Justice Clarence Thomas noted that policing speech was not how public accommodations laws like Colorado’s were traditionally applied, and other conservative majority justices appeared to agree that Smith shouldn’t be forced to express opinions with which she disagrees.
Kavanaugh questioned whether a publisher that backs abortion rights could decline to release a book with anti-abortion viewpoints. Gorsuch questioned whether independent authors could be forced to accept payments for promoting ideas they disagreed with.
Gorsuch agreed with Thomas when he said that the legalization of speech was “very different than the historical understanding of public accommodation.”
Justice Ketanji Brown Jackson, for instance, inquired about a photographer who creates custom images of nostalgic, sepia-toned scenes from the middle of the 20th century but limits who can be featured in the images.
Elena Kagan and Sonia Sotomayor, both liberal justices, took a similar stance in bringing up additional scenarios in which people might turn down customer requests.
Conservative Justice Samuel Alito responded to those scenarios with one of his own, asking whether a “Black Santa” who poses for pictures with kids during the holiday season could decline to serve kids who were dressed in the white garb typical of the Ku Klux Klan white supremacist group.
The “Black Santa” wouldn’t need to be in the picture, according to Colorado’s solicitor general Eric Olson, because Ku Klux Klan garb is not covered by the state’s anti-discrimination law.
The conflict over the Supreme Court’s own 2015 decision legalizing same-sex marriage, which conservative Christians oppose even as Congress moves to enact a law with bipartisan support that strengthens protections for married same-sex couples, is illustrated by the case as the most recent instance.
Smith, whose company is 303 Creative, told NBC News that while she has always been drawn to artistic endeavors, she also firmly believes that “marriage is between one man and one woman — and that union is significant.”
Although she has not yet received a sanction, Smith sued the Colorado Civil Rights Commission and other state officials out of fear that she might be punished for violating the state’s anti-discrimination law, which forbids discrimination on the basis of sexual orientation in public accommodations. Smith appealed to the Supreme Court after Smith was rejected by lower courts.
The case offers the court a second chance to address a legal issue that it considered but left unanswered in a related case in which it ruled in favor of a Christian baker from Colorado who refused to make a wedding cake for a gay couple in 2018. Because there was evidence of anti-religious bias, the court decided that Jack Phillips, a baker, did not receive a fair hearing before the state Civil Rights Commission.
In court documents, state officials claimed they never looked into Smith and had no proof that anyone had ever asked her to make a website for a same-sex wedding. The ability of all people to access goods and services is safeguarded by public accommodations laws, according to Colorado Solicitor General Eric Olson.