The Supreme Court is struggling to draw a line between two types of rights: those for gay people and the protections for free speech.
Yesterday, judges heard a highly anticipated case on whether a website designer in Colorado opposed same-sex marriage. Forced to serve same-sex couples.
The designer, Lorie Smith, says she wants to expand her business into providing wedding venues. But she doesn’t want to sell her wedding services to gay clients, based on her religious beliefs. She worried she would be violating Colorado law that prohibits businesses from discriminating on the basis of sexual orientation. So she sued state officials, claiming that forcing her to provide services to gay couples was tantamount to supporting their marriage and infringing on her right to free speech.
Both sides said the incident could have major consequences. Smith’s supporters say a decision against her would allow the government to coerce speech with which the speaker disagrees – a violation of the First Amendment. Her opponents say a ruling in her favor would effectively legitimize all forms of discrimination currently banned against certain classes, including race race or disability, under the guise of free speech.
The court heard a similar case in 2017, about a bakery that happened to be also in Colorado. But the judges then were more divided than the current court, and they delivered a narrow ruling that did not address the larger issues. Now that the court is controlled by a 6 to 3 conservative majority, it seem more likely to take decisive action — and ruled in Smith’s favor, said my colleague Adam Liptak, the court’s curator.
A slippery slope
Under Colorado law, businesses that serve the public cannot deny customers based on their race or sexual orientation, among other protected characteristics. A baker can refuse to make donuts for anyone. But if a baker says he’ll only make donuts for white people, that’s illegal discrimination.
But what if your business’s work is expressive and meaningful, like a website? Justice Elena Kagan, a libertarian, points to an example: Website creators might be comfortable with a design that says “God bless this union” for couples. heterosexual couples but not for gay couples. If the law forces her to provide that design to same-sex couples, it could lead to forcing her to express views she disagrees with.
That example becomes at the heart of the case: Does Smith discriminate against gay people or does she refuse to support same-sex marriage in any way? The answer is the difference between a case more about non-discrimination law or another about freedom of speech.
The problem for Smith’s supporters is that the same free speech argument could be used to allow other types of discrimination. A white wedding photographer who refuses to serve black or multiracial couples might say they oppose interracial marriage. A Black videographer can do the same with white or mixed couples. Or a band might reject disabled couples because of eugenic views.
At yesterday’s hearings, conservative judges in particular grapple with the risk of a ruling that allows other forms of discrimination. There is no clear solution on how to draw the line. “It was a really hard problem for them,” Adam told me.
uncertain results
It is possible that the court played a trick on this, as happened in the Colorado bakery case. Justice Clarence Thomas, a conservative, began the hearings yesterday by asking if the case was really “ripe” or ready for court to consider, as Smith hasn’t actually begun. your wedding website business.
But punishment is unlikely, Adam said: “They knew those issues were in the case before they took it.”
The question, then, might be how does the conservative majority draw the line between all the thorny issues that a ruling in Smith’s favor would bring.
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conservative majority of the court seems prepared to rule that Smith reserves the right to refuse to create sites celebrating same-sex weddings.
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Two judges joking about hypothetical situations involving dating sites and a Santa Claus at the Black mall.
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