Instead of waiting for a real case with real people and actual harm done, the U.S. Supreme Court in a 6 to 3 vote sided with Lorie Smith, a Littleton, Colorado, web designer opposed to same sex marriage. Smith challenged the state’s public accommodations law, claiming that by requiring her to serve everyone equally, the state was unconstitutionally enlisting her in creating a message she opposes.
But it was all just speculative.
Again, no one asked Smith, a conservative Christian, to make a website for a gay couple’s marriage, so there was no “expressive activity” – broad legalese for what Smith would create. Adding to the confusion, the high court didn’t define exactly what expressive or artistic activity or conduct is. Would it be building a template? Or language chosen about eternal love or the selection of wedding bells or flowers or ribbons?
SCOTUS took this First Amendment pre-enforcement challenge as a credible threat. But Colorado Attorney General Phil Weiser said the standard wasn’t met. In its merits brief, the AG’s office raised the fact this was not a real request. According to the brief: “The Company claims that, after it sued, it received a ‘request for a same-sex-wedding website.’ But the ‘request’ referred to by the Company was not a request for a website at all, just a response to an online form asking about ‘invites’ and ‘placenames,’ with a statement that the person ‘might also stretch to a website.’ ”
The high court’s sweeping decision did not give a full picture with the complexities and nuances that come with real-life human interactions. People harmed were not part of the story. More prudent would have been for SCOTUS to wait for a legitimate case with a clear challenge. As is, the ruling’s direct impact is chilling.
Smith’s creating the work on the site is, of course, the First Amendment part in all this. The selling of products to customers regardless of race, religion, sexual orientation or other protected characteristic will be tested. Weiser gave the example of a made-up heterosexual couple, Jackie and John, who purchase a wedding site from Smith. Then Jack and John, a same-sex couple, love the site and want the exact one. With this ruling, Smith won’t have to sell the site to the gay couple, even though the artistic work is completed.
Smith’s company 303 Creative can refuse to sell services to customers because of who they are.
What about a biracial couple? Could she turn away them, too, if she doesn’t believe people from different races should marry?
You can bet, the limits of this decision will be challenged with more arguments around free speech as well as conduct.
Justice Sonia Sotomayor, in an opinion joined by Justices Elena Kagan and Ketanji Brown Jackson, argued that the Constitution “contains no right to refuse service to a disfavored group.” Colorado’s public accommodations law only bars business owners from discriminating against members of the public based on (among other things) their sexual orientation, Sotomayor argued. It does not regulate or compel speech at all.
She makes a strong point – refusing to serve or deal with people is not an expressive interest protected by the First Amendment.
This ruling could encourage others businesses to cry First Amendment in refusing to serve particular customers, which would throw us back to a shameful time in U.S. history.
In June 2018, by a vote of 7 to 2, the court gave a narrow victory to Jack Phillips, a baker in Lakewood who refused to make a custom cake for a same-sex couple because of his religious beliefs. The court said the Colorado administrative agency that had ruled against Phillips did not employ religious neutrality. But the court did not decide whether compelling Phillips to bake a cake for a gay couple would violate his freedom of speech, nor did it determine to what extent a service provider’s sincere religious beliefs might bend to the state’s interest in protecting the rights of LGBTQ+ couples.
As disappointing as the outcome is in the web designer case, Weiser does see a “ray of sunshine.” He said, “I want to believe in Colorado.” The overwhelming majority in Smith’s situation will likely say, “I will serve everyone.”
We also believe in Colorado. People vote with their wallets. According to a Gallup poll released in February 2023, 7.2% of adults in the U.S. identified as LGBTQ last year. That’s a lot of money to leave on the table.
This high court may have inadvertently created a new rallying cry, coming soon to a sign, poster or bumper sticker near you. “I will serve everyone.”
We like the way it sounds.
