Supreme Court: Businesses can discriminate against gay people

Supreme Court LGBTQ Rights case

An evangelical Christian web designer can refuse services to same-sex wedding websites, the Supreme Court ruled Friday. Photo: Queerency

An evangelical Christian web designer can refuse services to same-sex wedding websites, the Supreme Court ruled in a decision today that’s a significant blow to the LGBTQ community.

The 6-3 decision today, with the conservatives justices in the majority, and the three liberal justices in the dissent, was in the case of 303 Creative LLC v. Elenis, and handed down on the last day of Pride Month.

The court said Colorado’s anti-discrimination law violates Lorie Smith’s free speech rights under the First Amendment by demanding she create same-sex wedding websites if she wants to design sites for heterosexual couples.

Smith claimed the requirement violated her religious beliefs.

The court’s ruling is narrow in that it’s limited to businesses creating messages.

But the decision is broad in that it doesn’t just apply to Colorado. It applies in states like California where civil-rights laws forbid discrimination on sexual orientation.

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Justice Neil Gorsuch authored the majority opinion, writing for himself and the court’s five other conservatives: Samuel Alito, Amy Coney Barrett, Brett Kavanaugh, John Roberts, Clarence Thomas, 

“But, as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong,” Gorsuch wrote. “Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider ‘unattractive.’”

The court’s three liberal justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, dissented.

“Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class,” Sotomayor wrote.

She also wrote, “A business open to the public seeks to deny gay and lesbian customers the full and equal enjoyment of its services based on the owner’s religious belief that same-sex marriages are ‘false’. The business argues, and a majority of the Court agrees, that because the business offers services that are customized and expressive, the Free Speech Clause of the First Amendment shields the business from a generally applicable law that prohibits discrimination in the sale of publicly available goods and services. That is wrong. Profoundly wrong.

“Our Constitution contains no right to refuse service to a disfavored group,” Sotomayor continued. “I dissent.”

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Smith, a graphic designer, wanted to expand her website design business, 303 Creative, to make wedding websites. But she didn’t want to create websites for same-sex marriages, believing it would be a violation of her religious beliefs as a Christian.

She also wanted to post a message on her company’s site indicating that view.

Colorado’s public accommodation law prohibits businesses that serve the public from discriminating on protected characteristics, including sexual orientation.

Smith filed a lawsuit in 2016 challenging Colorado’s LGBTQ-inclusive nondiscrimination law. She lost at the federal district court and appeals court levels.

The Supreme Court agreed in February 2022 to hear her case but only on the free speech claim. It heard oral arguments in December. Smith is represented by the Alliance Defending Freedom, a notoriously anti-LGBTQ+ legal nonprofit.

As Colorado and other states have added LGBTQ protections to their anti-discrimination laws, some wedding-service businesses have filed court challenges asserting violations of their First Amendment rights.

Judges have wrestled with these disputes, trying to determine how far states can regulate businesses’ conduct before they unconstitutionally interfere with artists’ religious beliefs or compel their speech. 

Five years ago, the Supreme Court heard a similar challenge to Colorado’s law from Jack Phillips, who owns a cake shop a few miles away from Smith. Colorado’s civil rights commission had sued him for refusing to make a custom wedding cake for a gay couple.

The justices ultimately sided with Phillips on narrow grounds, leaving the question of whether the public accommodation law violated the First Amendment unresolved.

About the author

Phillip Zonkel

Award-winning journalist Phillip Zonkel spent 17 years at Long Beach's Press-Telegram, where he was the first reporter in the paper's history to have a beat covering the city's vibrant LGBTQ. He also created and ran the popular and innovative LGBTQ news blog, Out in the 562.

He won two awards and received a nomination for his reporting on the local LGBTQ community, including a two-part investigation that exposed anti-gay bullying of local high school students and the school districts' failure to implement state mandated protections for LGBTQ students.

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