The setting sun illuminates the Supreme Court building on Capitol Hill in Washington on Jan. 10, 2023.
Patrick Semansky/AP
Patrick Semansky/AP
The U.S. Supreme Court ruled 6-3 long ideological lines that the First Amendment bars Colorado from “forcing a website designer to create expressive designs speaking messages with which the designer disagrees.”
The case pitted laws that guarantee same-sex couples equal access to all businesses that offer their services to the public against business owners who see themselves as artists and don’t want to use their talents to express a message that they don’t believe in.
For nearly a decade, the justices have dodged and weaved on this clash of legal values, declining to hear some cases and punting on one involving a baker who refused to make custom wedding cakes for same-sex couples. But now the issue was back before a far more conservative court, a court that reached out to hear the case even before any same-sex couples complained that they were the victims of illegal discrimination.
The plaintiff in the case, instead, is business owner Lorie Smith, a Colorado web designer who for the past decade has created all kinds of custom websites for clients.
Smith says that because of Colorado’s public accommodations law, she cannot do what she wants to do most — custom web designs for weddings. The reason: She believes that marriage should only be between a man and a woman.
Colorado Attorney General Philip Weiser says the state law is not seeking to dictate what Smith says in her web designs. He contends that Colorado allows any individual or business to create whatever they want, but “if you open your doors and say you are serving the public, you have to serve everyone, regardless of sexual orientation, religion, race or gender.”
The state doesn’t care about Smith’s message, he adds. Rather, “The question is more one of conduct. Will you sell the product or service to whoever from the public knocks on your door.”
Web designer Smith notes that she has created websites for gay and lesbian clients selling other products and services, but that she believes marriage is between a man and a woman. Moreover, she says she has refused to use her talents for those who want to convey all kinds of other messages as well.
On Friday, the court agreed.
Writing for the conservative majority, Justice Neil Gorsuch said: “Ms. Smith seeks to engage in protected First Amendment speech; Colorado seeks to compel speech she does not wish to provide. As the Tenth Circuit observed, if Ms. Smith offers wedding websites celebrating marriages she endorses, the State intends to compel her to create custom websites celebrating other marriages she does not. … If she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs, sanctions that may include compulsory participation in ‘remedial . . . training,’ filing periodic compliance reports, and paying monetary fines. That is an impermissible abridgement of the First Amendment’s right to speak freely.”
In her dissent, Justice Sonia Sotomayor wrote: “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”
She added: “Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities. New forms of inclusion have been met with reactionary exclusion. This is heartbreaking. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims.”
This story will be updated.