WASHINGTON — Conservative Supreme Court justices on Monday seemed sympathetic to an evangelical Christian web designer’s bid not to work on same-sex marriages as they weighed the latest clash between religious conservatives and LGBTQ rights.
But after two and a half hours of discussion with a wide variety of tricky hypothetical questions on both sides, it’s unclear exactly how the court, which has a 6-3 Conservative majority, will decide.
Lorie Smith, who opposes same-sex marriage on religious grounds and runs a Colorado website design company, is request an exemption of a state law prohibiting discrimination based on sexual orientation in public accommodations.
Smith sued the state in 2016, saying she would be happy to accept customers planning opposite-sex weddings, but reject requests from same-sex couples wanting the same service. She argues that as a creative professional she has the right of free speech under the Constitution’s First Amendment to refuse to undertake work that conflicts with her own views.
Civil rights groups say Smith is asking the court with a conservative majority for a “license to discriminate” that would undermine public housing laws that require companies to serve all customers.
Conservative majority judges generally seemed to favor the idea that Smith should not be forced to express feelings she disagrees with, with Judge Clarence Thomas noting that police speech was not the way public accommodation laws such as those of Colorado, were traditionally applied.
“This is not a hotel. This is not a restaurant. This is not a riverboat or train,” he said, referring to companies that must serve all customers. Other conservative justices, including Justices Brett Kavanaugh and Neil Gorsuch, asked similar questions.
But the problem facing the court when it rules for Smith is how to determine what kind of other conduct can be exempted from anti-discrimination laws.
Liberal judges, more aligned with the state of Colorado, came armed with tough questions about whether companies could refuse to serve black or disabled customers.
Judge Ketanji Brown Jackson, for example, asked whether a photographer who takes custom photos of nostalgic scenes from the 1950s could refuse to include black people in his photos, arguing that it would not be historically accurate to evoke his version of what such a scene should look like. Like it.
Fellow Liberal Justices Elena Kagan and Sonia Sotomayor took a similar stance in putting forward other scenarios where people might turn down customer requests.
“What about people who don’t believe in intermarriage and people who think people with disabilities shouldn’t get married?” asked Sotomayor.
In response to those hypothetical situations, conservative judge Samuel Alito raised his own, wondering if a “black Santa” who is pictured with kids during the holiday season could refuse to provide service to kids wearing the white outfits characteristic of the Ku Klux Klan. white supremacist group.
Colorado attorney general Eric Olson said the “Black Santa” didn’t need to be in the photo because Ku Klux Klan outfits are not protected by Colorado’s anti-discrimination law.
The case is a recent example of the conflict over the Supreme Court’s own 2015 ruling legalizing same-sex marriage, which conservative Christians are resisting even as Congress has moved to pass a bipartisan bill extending protections for married couples. same-sex couples.
Smith, whose company is called 303 Creative, told NBC News that she’s always been drawn to creative projects, but also strongly believes that “marriage is between one man and one woman — and a commitment is important.”
Smith sued the Colorado Civil Rights Commission and other state officials over concerns she could face sanctions under the anti-discrimination law that prohibits discrimination based on sexual orientation in public accommodations, though she has not yet been penalized. Lower courts ruled against Smith, prompting her to appeal to the Supreme Court.
The case gives the Supreme Court, which now has a 6-3 conservative majority, a second bite in a legal issue it considered but never resolved when it ruled in favor of a Christian baker, also from Colorado, in 2018 in a similar case. who refused to make a wedding cake for a gay couple. The court then ruled that the baker, Jack Phillips, was not given a fair trial before the state’s civil rights commission because there was evidence of anti-religious bias.
The 2018 ruling left undecided the broader question now at issue in Smith’s case. If the court decides in favor of Smith, certain business owners would, in effect, be exempt from elements of laws in 29 states protecting LGBTQ rights in public accommodations in one form or another. The remaining 21 states have no laws explicitly protecting LGBTQ rights in public accommodations, although some local municipalities do.
Civil rights groups say a ruling to that effect would undermine the entire purpose of anti-discrimination laws.
State officials have said in court filings that they never investigated Smith and had no evidence that anyone ever asked her to create a same-sex marriage website. Colorado Attorney General Eric Olson wrote that there is a long tradition of public accommodation laws that protect the ability of all people to obtain goods and services.
Smith, like Phillips before her, is represented by Alliance Defending Freedom, a conservative Christian legal group, which has successfully argued religious rights cases in the Supreme Court in recent years. The court ruled on the Baker case before the retirement of Judge Anthony Kennedy, who voted for LGBTQ rights in key cases. Now, after three appointments by former President Donald Trump, the court has six conservative and three liberal judges.
Kennedy was in the majority when the court legalized same-sex marriage by a vote of 5 to 4. In another major victory for LGBTQ rights, the Supreme Court ruled in 2020 — to the surprise of many justice officials — that a federal law prohibiting gender discrimination in the workplace protects LGBTQ workers.
A year later, the court ruled in favor of a Catholic Church-affiliated agency that had excluded the city of Philadelphia from its foster care program because of the church’s opposition to same-sex marriage. In other cases, the Conservative majority has consistently supported religious rights in recent years.