Credit: (AP Photo/Andrew Harnik)Conservative U.S. Supreme Court justices appeared sympathetic to a Christian web designer from Colorado who is challenging a law in her state because she does not want to create wedding websites for same-sex couples.
The court heard oral arguments Monday about whether Lorie Smith could exercise freedom of speech to deny her design services to non-heterosexual couples. Colorado has protections making it illegal for businesses to discriminate against people for their sexuality. Smith argued the law violates her freedom of speech because it would make her share a message she doesn’t believe in. She has not started her wedding website business for fear of violating state law.
New Jersey has a similar law that makes it illegal for people to be discriminated against in a “public accommodation,” meaning businesses cannot discriminate against people they serve.
The justices contemplated whether Smith’s business could be considered a “public accommodation,” and they proposed hypothetical situations as they worked to understand the impact of their decision. But the hypotheticals posed by the conservative justices signaled that they may side with Smith, as they alluded to a potential decision that could impact more than just people who are opposed to same-sex marriages.
Justice Brett Kavanaugh said if Smith lost her case, that speechwriters could be forced to write speeches about ideas they do not agree with. Justice Amy Coney Barrett said that a newspaper could not be allowed to only highlight same-sex marriages in its wedding announcement section during Pride Month. She also told Smith’s lawyer that her “strongest ground” was that Smith’s work is custom design work.
Key questions
This case is being heard as people fear that same-sex marriages are at risk of no longer being protected. The court’s 6-3 Republican majority demonstrated over the summer that the settled cases like Roe v. Wade could be overturned, and with them their civil liberties would be at peril.
And the question that has been hanging since Dobbs v. Jackson, when federal protections on abortion rights were rescinded: Where will the Supreme Court draw the line at retracting civil liberties, especially as they relate to race, disability and gender?
‘How about people who don’t believe in interracial marriage? Or about people who don’t believe that disabled people should get married? Where’s the line?’ — Justice Sonia Sotomayor
Justice Sonia Sotomayor repeatedly questioned this line of thinking, asking about where that line could be drawn.
“How about people who don’t believe in interracial marriage? Or about people who don’t believe that disabled people should get married? Where’s the line?” Sotomayor said during the oral arguments.
Justice Samuel Alito said that objections to same-sex marriage were different from opposition to interracial marriage, citing Justice Anthony Kennedy’s opinion in the 2015 Obergefell v. Hodges case that provided protections for same-sex marriages. Kennedy wrote that people had “decent and honorable religious or philosophical reasons” to be against non-heterosexual unions.
Interracial marriage
Alito asked Colorado Solicitor General Eric Olson, who was representing Colorado, if “it’s fair to equate the opposition to same-sex marriage with the opposition to interracial marriage.” Olson said they were similar.
Credit: (AP Photo/Andrew Harnik)Kim Mutcherson, co-dean of Rutgers Law School, not referring specifically to Smith’s case but to the Supreme Court in general, said that interracial marriage might be “harder” for the court to unravel because there are race protections in a few different constitutional amendments but that there are none for the LGBTQ community.
“It’s much easier to go after queer communities because there are no amendments to the Constitution that specifically speak to protecting queer people from any type of discrimination. So we’re a pretty easy group to target in that sense,” she said in an interview with NJ Spotlight News.
‘These are people who put up their right hand and swore in front of the Senate that they would not be activist judges … and then turned around and became exactly that.’ — Tom Prol, Garden State Equality
Justices Clarence Thomas and Alito have voiced their opposition to Obergefell and same-sex marriages over the years. So when Thomas said in his Dobbs opinion that cases about protections, like Obergefell v. Hodges, should be reconsidered by the court, founding board member of Garden State Equality Tom Prol said he was not surprised.
Immediate concerns
“It’s troubling because you have had at least two U.S. Supreme Court justices step in front of microphones multiple times and promised to overturn Obergefell and do away with a constitutional right to equal protection for same-sex couples. So that’s the concern now, and they’re actively subverting established Supreme Court law,” said Prol, who is also a former president of the New Jersey State Bar Association.
Prol said he believed the conservative justices used “circular logic” during Monday’s oral arguments. Justice Neil Gorsuch said that Smith wouldn’t be discriminating against same-sex couples — instead refusing services because she would disagree with the message they wanted to send with their websites because she disagrees with their marriages.
“That’s the disingenuous argument; the disingenuous logic of this case is that we’re not not serving you because you’re gay. We’re not serving you because you’re trying to get us to create content that is about being gay. It’s not an intellectually honest argument,” Prol said.
Prol said it will be “interesting” how the court decides whether a wedding website could be “compelled speech” — the idea that the government cannot force a person to express something they do not want to — as it relates to a business owner who doesn’t want to create wedding websites for same-sex couples. Prol, who was a key player in New Jersey’s own case to protect same-sex marriages, said he sees a similar anti-LGBTQ sentiment in the Supreme Court as he did in public sentiment over 20 years ago.
“These are people who put up their right hand and swore in front of the Senate that they would not be activist judges — literally said that as part of the confirmation process — and then turned around and became exactly that,” he said.
