December 5, 2022 - NPR
Nina Totenberg
The U.S. Supreme Court hears arguments Monday in a potential landmark case that pits two cherished constitutional principles against each other. On one side are laws that guarantee same-sex couples equal access to all businesses that offer their services to the public. On the other are 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 is back before a far more conservative court, a court that reached out to hear Monday's 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.
"The pieces I create are art. They're one of a kind. They're unique," she said in an interview with NPR. "I cannot create something that violates the core of what I believe."
Smith says that because of Colorado's public accommodations law, she cannot do what she wants to do most ć»custom web designs for weddings. The reason: She believes that marriage should only be between a man and a woman.
"I want to create and design for weddings that are consistent with my faith," she says, adding that she "can't do that that because" Colorado is "censoring and compelling" her speech by "forcing" her to create custom websites "that would contradict" her view of marriage. So, even though she hasn't actually launched a wedding website business yet, she is preemptively challenging Colorado's public accommodations law as a violation of her First Amendment right to free speech and expression.
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.
"I've declined political messages, messages that promote atheism, messages that are anti-American, messages that are racist, messages that denigrate LGBT people or other people." If I don't believe in the message a prospective client wants, she says, "I have to say 'no.'"
That just doesn't work as a legal rule, says University of Pennsylvania law professor Tobias Wolff, who filed a brief in the case siding with Colorado.
"Imagine if the website designer, the cake decorator, the wedding photographer" were to "show up at the wedding and then proceed to say to the people getting married, 'I don't like this part of your vows,' or 'These people can't be in your wedding party because I'm the speaker here.' We would think they were nuts, right?"
Nuts, he says, because these wedding vendors aren't "street corner speakers standing on a soapbox, proclaiming their own message." Instead, they have set up a business "to sell [their] talents in the commercial marketplace, and when you do that, you are placing those talents in service of your customers," Wolff says. "And that's just a very different situation and one that the First Amendment treats very differently."
"Speakers don't lose their rights when they enter the public square and try to earn a living," counters Kristen Waggoner, the lawyer representing Smith in the Supreme Court. Waggoner draws the constitutional line in a very different place.
"The line is the government doesn't have the power to compel an individual to speak," she argues. It's "simple," has "stood the test of time," and "is protected by the First Amendment." The rationale is the same, she says, for a Black sculptor who doesn't want to design for the Aryan Church, or the Democratic Party publicist who doesn't want to advance Donald Trump's agenda.
But professor Wolff replies that the compelled speech doctrine has never been applied in the commercial marketplace where "the only thing that the government is doing is establishing a neutral set of rules that everybody has to play by."
If that is no longer the case, he asks, what if a business owner were to say that he doesn't want to serve interracial couples because he views them as acting against God's law that marriage should be between people of the same race?
Waggoner dismisses that argument, noting that when the Supreme Court declared marriage a right for same-sex couples in 2015, the court, as she put it, "explained very clearly" that many "decent and honorable" people hold beliefs opposed to same-sex marriage. In contrast, she says, "interracial marriage laws are grounded in white supremacy and they're designed to subjugate an entire class of people."
Now the Supreme Court will decide just where state, local and even the federal government may draw the line when it comes to same-sex couples and laws requiring businesses that are open to the public to serve everyone on an equal basis.