The Supreme Court on Tuesday agreed to take up the case of a graphic designer in Colorado who creates websites to celebrate weddings but does not want to work with same-sex couples out of religious objections.
The court’s decision means it will wade into another bitter fight next term pitting a business owner who refuses to serve same-sex couples against a state law that bars discrimination on the basis of sexual orientation.
Four years ago, the court sided with a Colorado baker who refused to make a cake for a same-sex wedding. That ruling, however, was carefully tailored to the case at hand and was not a broad nationwide verdict on whether businesses could decline services to same-sex couples based on religious objections to same-sex marriage.
Earlier this term, a Washington state florist who refused to make an arrangement for a couple out of religious objections to same-sex marriage withdrew a pending petition before the court after announcing that she had settled her dispute.
The new case out of Colorado comes to the Supreme Court as the conservatives on the court have expanded religious liberty rights.
Lorie Smith, who runs a company called 303 Creative, seeks to expand her business into the area of weddings and has written a webpage explaining why she won’t create websites for same-sex couple. But under a Colorado public accommodations law, she says she cannot post the statement because the state considers it illegal.
Under Colorado’s Anti-Discrimination Act, a company cannot publish any communication that indicates that a public accommodation service will be refused based on sexual orientation. Smith lost her case when a federal appeals court ruled against her – a decision her lawyers said amounted to the “extreme position that the government may compel an artist – any artist – to create expressive content, even if that content” violates the artist’s faith.
Colorado’s Attorney General Phil Weiser, a Democrat, urged the justices to decline a review of the case, noting in part that Smith hadn’t yet officially submitted her proposal and that there was no “credible threat of enforcement” of its law.
“The Company has never offered wedding website services to any customer,” he said in court papers, and stressed that Colorado has not “challenged its business practices.”
The web designer appealed the case to the Supreme Court after the US 10th Circuit Court of Appeals ruled against her in the dispute.
In a statement after the Supreme Court announced it was taking up the case, a lawyer for the web designer said that it was “shocking that the 10th Circuit would permit Colorado to punish artists whose speech isn’t in line with state-approved ideology.”
“Colorado has weaponized its law to silence speech it disagrees with, to compel speech it approves of, and to punish anyone who dares to dissent. Colorado’s law – and others like it – are a clear and present danger to every American’s constitutionally protected freedoms and the very existence of a diverse and free nation,” said the lawyer, Kristen Waggoner, the general counsel of the conservative legal organization Alliance Defending Freedom.
The Supreme Court’s previous look at anti-discrimination laws and religious liberty
The case the court accepted Tuesday will allow the justices to directly confront the tension between state anti-LGBT discrimination laws and claims of religious liberty.
When the Supreme Court last weighed in on the Colorado law, it avoided the bigger picture question. The court’s ruling sided with a baker who had refused to bake wedding cakes for same-sex couples, but in an opinion the zeroed in on the specifics of how baker’s religious freedom claims were handled by the state.
In a 7-2 ruling handed down in 2018, the court said that Colorado Civil Rights Commission showed hostility toward the baker by downplaying his religious beliefs. The opinion – written by Justice Anthony Kennedy, who retired at the end of that term and was replaced by Justice Brett Kavanaugh – hinted that the court would have wait for future cases to dig deeper into how to balance LGBT rights with religious liberty.
“The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market,” Kennedy said.
Since Kavanaugh replaced Kennedy, the court was pushed even further to right with the 2020 death of Justice Ruth Bader Ginsburg – who dissented in the 2018 case – allowing former President Donald Trump to replace her with the conservative Justice Amy Coney Barrett.
“Today’s grant means that the Court is set to decide an issue it ducked in 2018, namely whether businesses can be forced by anti-discrimination laws to serve same-sex couples even if it conflicts with their religious beliefs,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.
“Four years ago, it decided a similar claim very narrowly based on the conclusion that Colorado had singled-out a specific cake shop for hostile treatment,” he added. “Now, the issue will have nationwide import, and will be decided by a very different Court than the one that punted then.”
This story has been updated with additional details.