Yahoo Finance Supreme Court again considers if businesses can turn away same-sex customer requests
The Supreme Court on Monday considered arguments in a long unsettled dispute over the rights of business owners who decline services to same-sex couples.
The case is one in a series of same-sex discrimination cases that the high court has mulled over the past decade, though failed to broadly settle whether a state’s anti-discrimination laws can compel a business owner to provide services, when the service requires them to speak or stay silent in contravention of their religious beliefs.
Colorado website designer Lorie Smith of 303 Creative LLC first filed suit in 2016, arguing that a state law known as the Colorado Anti-Discrimination Act (CADA), which is meant to protect customers from discrimination, violates her First Amendment right to free speech.
Smith said she should be entitled to decline designing wedding websites on behalf of same-sex couples, since doing so would force her to engage in speech that violates her religious beliefs. She also argued that she should be free to post a statement on her company website explaining that she can only speak messages consistent with her faith.
The case could broadly impact state public accommodation laws in force across the country. Those laws, like Colorado’s law, prohibit businesses that are open to the public from discriminating against customers on various bases, such as gender, age, sexual orientation, race, marital status, ancestry, and religion.
“This would be the first time in the court’s history, correct, that it would say that a business open to the public…that it could refuse to serve a customer based on race, sex, religion, or sexual orientation?” Associate Justice Sonia Sotomayor asked Colorado Solicitor General Eric Reuel Olson about the potential of the court granting Smith an exemption to the state’s law. Olson was joined by the U.S. Justice Department in advocating for the application of the law to business owners like Smith.
Olson affirmed Justice Sotomayor's question and argued that granting Smith an exemption would empower all businesses that offer so-called “expressive services” — from architects, to photographers, to consultants — to refuse service to customers based on disability, sexual orientation, religion, or race.
“The free speech clause exemption the company seeks here is sweeping because it would apply, not just to sincerely held religious beliefs like those of the company and its owner, but also to all sorts of racist, sexist, and bigoted views,” Olson said.
Smith’s lawyer, Kristen Kellie Waggoner from the conservative Christian advocacy group Alliance Defending Freedom, argued that the government through its public accommodation laws should not be permitted to compel Smith’s speech because she’s creating speech, not simply selling it.
“And this includes artistic expression, photography, painting, calligraphy, and films — forms of media that the lower courts have shockingly refused — refused to recognize as speech when it comes to marriage,” Waggoner said. Under Colorado’s theory, Waggoner argued, the state could similarly compel a Democratic publicist to write a Republican’s press release.
Associate Justice Brett Kavanaugh appeared to be persuaded by Waggoner’s argument. In one line of questioning, he suggested that if Colorado prevailed, speechwriters could be subject to public accommodation laws and compelled to write speeches with which they disagree.
Though the justices questioned whether Smith’s wedding website content actually qualifies as the website designer’s speech, as opposed to the speech of her customers.
“This is their story,” Associate Justice Elena Kagan opined about the wedding-related content requested by Smith’s prospective customers.
Still, Associate Justice Ketanji Brown Jackson acknowledged a gray area that exists for business providers who also provide customized, curated services.
“When you have an artist for hire, there’s a question about whether what they make is their statement or the customer’s statement,” Jackson said. She then inquired whether a disclaimer for the artist could help solve the dispute.
In 2018, the Supreme Court took up another case that challenged Colorado’s law. The dispute centered on baker Jack Phillips’ refusal, based on his religious beliefs, to create a wedding cake for a same-sex couple. However, in a 7-2 decision the court acknowledged that its ruling offered little guidance to settle similar disputes. The court, instead of ruling on the underlying issues in the case, held that Colorado’s Civil Rights Commission showed anti-religious bias against Phillips in considering the case.
On Twitter, Associate Justice Neil Gorsuch came under scrutiny for suggesting that Colorado required Phillips to complete a reeducation program, following the 2018 decision. Olson disagreed saying that the baker received training to educate him about Colorado law.
Gorsuch also contemplated whether a line could be drawn to distinguish between discrimination against same-sex couples, which would be illegal under the law, versus discrimination against prospective messages that Smith may be asked to convey. The question isn’t “who” Gorsuch said, but “what.”
Twenty states filed briefs in support of Smith. The court is expected to issue a decision in the case before July.
The headline was amended to clarify the court's consideration of same-sex customer requests.
Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.
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