The case is 303 Creative v. Elenis, which involves Lorie Smith, a web designer from Colorado who is a Christian. She is claiming that the Colorado Anti-Discrimination Act (CADA) violates her First Amendment freedom of speech and free exercise of religion rights. Smith has not started creating wedding websites over fear of breaking a law in Colorado that prohibits discrimination. She wants to post a message saying she won’t make websites for same-sex couples due to her religious beliefs. However, CADA makes it so that businesses cannot discriminate against certain individuals or say they are going to do so.
The justices heard arguments for the case at the Supreme Court on Monday and several of them asked questions about hypothetical situations when it comes to this issue.
“Let’s just say that [The New York Times] for Gay Pride Month decides that it’s going to run — to promote and recognize same sex marriage — only same sex marriage announcements, turns away heterosexual announcements, not because it disparages or disagrees with opposite-sex unions but because it’s trying to promote something else,” Justice Amy Coney Barrett said.
“Can it do that?” she asked Colorado Solicitor General Eric Olson. “That’s a protected characteristic under the law?”
“I think the answer is no,” Olson answered after discussing it.
Justice Clarence Thomas spoke about the use of public accommodations laws.
“[T]he complicating factor here — fact here is this is not a hotel, this is not a restaurant, this is not a riverboat or a train. I’m interested in the intersection of public accommodations law and speech,” he said.
Justice Neil Gorsuch asked about the content factor of the issue, questioning, “the objections to compelled speech on religious grounds could include, in fact, do include, some objections with respect to certain heterosexual marriages, that there are certain heterosexual unions that your client would not speak toward either, is that correct?”
“Certainly, and that’s in the stipulated facts in terms of she declines messages based on the message, and she has declined other projects based on the message that have nothing to do with same-sex marriage,” Kristen Waggoner, Smith’s attorney said.
“So the question isn’t who, it’s what?” Gorsuch asked.
“Always,” Waggoner responded.
Justice Brett Kavanaugh asked about how a ruling might impact the profession of speechwriting.
“So I’m trying to figure out given what you say there how you would say this case does not involve the same thing as a writer being forced to write speeches that violate their most deeply held convictions,” Kavanaugh asked Deputy Solicitor General Brian Fletcher, who was arguing for Colorado’s law.
Justice Ketanji Brown Jackson discussed a scenario where a holiday photographer in a mall could refuse to include children of color in photos if they are trying to create “feelings of a certain era.”
Justice Alito then posed a question furthering the debate, asking, “Justice Jackson’s example of the — the Santa in the mall who doesn’t want his picture taken with black children, so if there’s a — a black Santa at the other end of the mall and he doesn’t want to have his picture taken with a child who’s dressed up in a Ku Klux Klan outfit, that — that black Santa has to do that?”
“No, because Ku Klux Klan outfits are not protected characteristics under public accommodation laws,” Olson responded.
“How about people who don’t believe in interracial marriage?” Justice Sonia Sotomayor asked. “Or about people who don’t believe that disabled people should get married? Where’s the line?”
The Supreme Court refused to hear the argument that the Colorado measure violates Smith’s religious freedom when it decided to take on the case. It also refused to listen to Smith’s desire to alter Supreme Court precedent on neutral laws that might impact religious people.
The justices did, however, agree to answer the question of “[w]hether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”
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