Supreme Court Considers Case of Christian Website Designer Targeted Because She Won’t Promote Same-Sex Weddings
In today’s oral argument, members of the court’s conservative majority seemed sympathetic to legal arguments that Lorie Smith should not be compelled to undertake actions that violate her core beliefs.
WASHINGTON — A Christian website designer in Colorado ought to be able to turn down same-sex weddings because her commercial service is also protected free speech, her lawyer told the U.S. Supreme Court on Monday.
Some members of the court’s conservative majority seemed sympathetic to that argument during oral argument, seeing a distinction between unlawful discrimination and lawful speech.
“So the question isn’t ‘Who,’ it’s ‘What,’” Justice Neil Gorsuch said at one point.
But Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson peppered the website designer’s lawyer with hypothetical scenarios designed to show that turning down a same-sex couple seeking to celebrate a wedding is akin to rejecting customers because of their race, religion or disability.
The difference, the website designer’s lawyer said, is that artists produce content that amounts to speech, and they should not be compelled to create speech they disagree with.
“It is their work. It might also be the customer’s, and the customer can use that. But the First Amendment is broad enough to cover the lesbian website designer and the Catholic calligrapher. The line is that no one on any side of any debate has to be compelled to express a message that violates their core convictions, because as this court found, it’s demeaning to them,” said Kristen Waggoner, a lawyer with Alliance Defending Freedom, which is representing Smith.
A lawyer for the state argued that Colorado’s law rightly protects various classes of people against discrimination, including same-sex couples.
“The company claims that because it wants to sell websites, the law somehow targets expression, and therefore violates the First Amendment. But because Colorado law targets the commercial conduct of discriminatory sales, its effect on expression is at most incidental,” said Eric Olson, Colorado’s solicitor general.
What the Website Designer Wants to Do
A state law known as the Colorado Anti-Discrimination Act prohibits businesses and other “public accommodations” from refusing to provide “the full and equal enjoyment of” goods and services on the basis of “sexual orientation, gender identity, gender expression,” and eight other protected classes.
But the website designer, Lorie Smith, says she wants to encourage what she calls “biblical marriage” — which doesn’t include same-sex couples.
She wants to put a statement on her website, according to a brief filed by her lawyers, that says in part:
“I firmly believe that God is calling me to this work. Why? I am personally convicted that he wants me — during these uncertain times for those who believe in biblical marriage — to shine his light and not stay silent. He is calling me to stand up for my faith, to explain his true story about marriage, and to use the talents and business He gave me to publicly proclaim and celebrate His design for marriage as a lifelong union between one man and one woman.”
The statement continues:
“These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage — the very story He is calling me to promote.”
Smith’s lawyers invited the federal Supreme Court to decide the case on religious-freedom grounds. But the court turned down that request when it took the case in February 2022, limiting arguments to freedom of speech.
Observers have likened Smith’s case to that of Jack Phillips, a Christian baker in Colorado who has refused to make wedding cakes celebrating same-sex weddings. Phillips won a case at the U.S. Supreme Court in June 2018, but on narrow grounds, as the court declined to rule on whether he had broad free-speech protection. He is now fighting a lawsuit filed against him for refusing to bake a cake celebrating a gender transition. The Colorado Court of Appeals heard oral argument in that case on Oct. 5.
In February 2021, in a statement approved by Pope Francis, the Vatican’s Congregation for the Doctrine of the Faith said the Roman Catholic Church can’t bless same-sex relationships.
The document says people who are attracted to members of the same sex “should recognize the genuine nearness of the Church — which prays for them, accompanies them and shares their journey of Christian faith.” But it also says God “does not and cannot bless sin,” and it cites a 2003 Church document that says “there are absolutely no grounds for considering homosexual unions to be in any way similar or even remotely analogous to God’s plan for marriage and family.”
Smith identifies as a Christian, not a Catholic. But she has drawn support from the U.S. Conference of Catholic Bishops, which joined, along with four other religious organizations, a friend-of-the-court brief on her side.
“The Court should do here what it has so often done in the past: apply the Free Speech Clause to protect religious speech, thereby strengthening liberty not just for the religious but for all society,” the bishops conference’s June 2022 brief states.
The friend-of-the-court brief singles out the case of a Catholic farmer in Michigan unable to take part in a farmer’s market in East Lansing because he won’t host same-sex weddings at his farm. City officials have denied him access to the farmer’s market on that basis.
The dispute centers on Steve Tennes, the owner of Country Mills Farm in Charlotte, Michigan, whose case has been reported by the Register. It went to a bench trial before a federal judge in U.S. District Court for the District of Western Michigan in July 2021, but no decision has been issued.
Service or Speech?
Smith’s lawyers have argued that she has no problem serving homosexuals as customers, but that she won’t help them or anyone else create a message that she doesn’t believe in.
During oral argument, Sotomayor, one of the court’s liberals, likened that argument to a chef who won’t serve a Black person or a disabled person because he doesn’t believe such people are entitled to the works he creates.
“That’s basically what you’re saying,” Sotomayor said.
“No, I don’t think that’s what I’m saying. We’re conflating service and speech in that instance,” Waggoner said.
“But why is yours not a service?” Sotomayor asked.
“Because it is creating speech,” Waggoner responded. “And the public-accommodation law is broad enough to ensure that we’re not crushing consciences, not just of Miss Smith, but of her LGBT friends.”
A decision in the case is expected by early July 2023.
- lorie smith
- free speech rights
- u.s. supreme court
- matt mcdonald
- catholic teaching on marriage and sexuality