Gorsuch criticizes Sotomayor’s dissent in Christian web designer case: ‘Undermines its own stance’

Supreme Court Justice Neil Gorsuch Shreds Dissent in Landmark Ruling

In a groundbreaking 6-3 decision, the Supreme Court has struck down a Colorado law that would have punished a Christian graphic designer for refusing to create a website for a same-sex wedding. Justice Neil Gorsuch, writing for the majority, delivered a scathing response to Justice Sonia Sotomayor’s dissent.

Gorsuch emphasized the importance of the First Amendment in protecting Lorie Smith’s religious beliefs. He stated, “no public accommodations law is immune from the demands of the Constitution.”

Addressing Sotomayor’s dissent, Gorsuch remarked, “It is difficult to read the dissent and conclude we are looking at the same case.” He criticized the dissent for focusing on the evolution of public accommodations laws and the progress made by the LGBTQ+ community, rather than addressing the central question at hand.

Gorsuch continued to dismantle Sotomayor’s arguments, pointing out the dissent’s misrepresentation of the facts and its failure to acknowledge Colorado’s intention to force Smith to convey a message she does not believe in.

Nor does the dissent’s reimagination end there. It claims that, “for the first time in its history,” the Court “grants a business open to the public” a “right to refuse to serve members of a protected class.” Post, at 1; see also id., at 26, n. 10, 35. Never mind that we do no such thing and Colorado itself has stipulated Ms. Smith will (as CADA requires) “work with all people regardless of . . . sexual orientation.” App. to Pet. for Cert. 184a. Never mind, too, that it is the dissent that would have this Court do something truly novel by allowing a government to coerce an individual to speak contrary to her beliefs on a significant issue of personal conviction, all in order to eliminate ideas that differ from its own.

There is still more. The dissent asserts that we “sweep under the rug petitioners’ challenge to CADA’s Communication Clause.” Post, at 26. This despite the fact the parties and the Tenth Circuit recognized that Ms. Smith’s Communication Clause challenge hinges on her Accommodation Clause challenge. (So much so that Colorado devoted less than two pages at the tail end of its brief to the Communication Clause and the Tenth Circuit afforded it just three paragraphs in its free-speech analysis. See Brief for Respondents 44–45; 6 F. 4th, at 1182–1183.) The dissent even suggests that our decision today is akin to endorsing a “separate but equal” regime that would allow law firms to refuse women admission into partnership, restaurants to deny service to Black Americans, or businesses seeking employees to post something like a “White Applicants Only” sign. Post, at 1, 16–21, 26, 28–29, 32, and n. 13, 37. Pure fiction all.

In some places, the dissent gets so turned around about the facts that it opens fire on its own position. For instance: While stressing that a Colorado company cannot refuse “the full and equal enjoyment of [its] services” based on a customer’s protected status, post, at 27, the dissent assures us that a company selling creative services “to the public” does have a right “to decide what messages to include or not to include,” post, at 28. But if that is true, what are we even debating?

Instead of addressing the parties’ stipulations about the case actually before us, the dissent spends much of its time adrift on a sea of hypotheticals about photographers, stationers, and others, asking if they too provide expressive services covered by the First Amendment. Post, at 27–29, 31–32, 37. But those cases are not this case. Doubtless, determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions. But this case presents no complication of that kind. The parties have stipulated that Ms. Smith seeks to engage in expressive activity. And the Tenth Circuit has recognized her services involve “pure speech.” See supra, at 6, 9. Nothing the dissent says can alter this—nor can it displace the First Amendment protections that follow.

The dissent’s treatment of precedent parallels its handling of the facts. Take its remarkable suggestion that a government forcing an individual to create speech on weighty issues with which she disagrees—all, as the Tenth Circuit found, with the goal of “[e]liminating” views it does not share, 6 F. 4th, at 1178—only “incidental[ly]” burdens First Amendment liberties. Post, at 26–35. Far from embracing a notion like that, our cases have rejected it time after time—including in the context of public accommodations laws. See Parts II–IV, supra; FAIR, 547 U. S., at 61– 64 (no government may affect a “speaker’s own message” by “forc[ing]” her to “accommodate” views she does not hold); Hurley, 515 U. S., at 563, 566 (using a public accommodations law to compel parade organizers to include speech they did not believe was no mere “‘incidental’” infringement on First Amendment rights); Dale, 530 U. S., at 659 (employing a public accommodations law to require the Boy Scouts to alter their admissions policies had more than “an incidental effect on protected speech”).

Lorie Smith, the Christian graphic designer at the center of the case, expressed her willingness to work with anyone regardless of their sexual orientation. However, she objected to being forced to create wedding websites for same-sex couples due to her deeply held beliefs.

“There are some messages I can’t create no matter who requests them,” Smith said in December.

Smith had delayed expanding her business to include wedding website design out of concern that it would conflict with Colorado’s public accommodations law. Colorado argued that Smith’s refusal amounted to discrimination against same-sex couples, but Gorsuch’s ruling affirmed the protection of Smith’s speech and beliefs.

Mairead Elordi contributed to this report.

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