The U.S. Supreme Court heard more than two hours of arguments Monday in a constitutional test of state public accommodations laws that protect same-sex couples from discrimination.
Four years ago, the high court side-stepped the issue in a case involving a Colorado baker who refused to make custom wedding cakes for same-sex couples. But on Monday the question was back again.
On one side is the state of Colorado, which like 29 other states, requires businesses that are open to the public to offer equal access to everyone, regardless of race, religion, and sexual orientation, and gender. On the other side are business owners who see themselves as artists and don’t want to use their talents to express a message they disagree with.
Challenging the law is Lorie Smith, a custom web designer who is opposed to same-sex marriage. “I want to design for weddings that are consistent with my faith,” she says.
She is pre-emptively suing Colorado because she believes that the state public accommodations mandate violates her right of free speech.
Questions from the liberal justices
In the Supreme Court Monday, Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson all had looked at Smith’s planned website, which includes typical information about dates, hotel accommodations, wedding registry, etc. So if she is offering that kind of website to “Mike and Mary,” asked Kagan, why not the identical site for “Mike and Mark?”
Lawyer Kristen Waggoner, representing Smith, said that would be unconstitutional compelled speech. “When you switch out those names,” she said, “you’re switching out the concept and the message.”
Sotomayor asked a question that recurred several times. “How about people who don’t believe in interracial marriage?” she wanted to know. For example, there could be business owners who say, “I’m not going to serve those people because I don’t believe Black people and white people should get married.” Would this be permissible?
Jackson asked about a hypothetical photography business recreating scenes with children sitting on Santa’s lap at a mall. The project aims to take “nostalgia photographs,” with sepia colors that capture the feeling of the 1940s and 50s, but because “they’re trying to capture the feelings of a certain era, their policy is that only white children can be photographed with Santa.” Would that be permissible, she asked?
Lawyer Waggoner dodged and weaved, never really giving an answer.
Justice Alito’s hypothetical
Justice Samuel Alito, in turn, asked whether a Jewish photographer would have to take photographs for a Jewish client’s Ashleymadison.com profile. For the uninitiated, Ashleymadison.com is a website for married people who want to have affairs. Assuming this could violate the Jewish photographer’s beliefs on the sanctity of the marriage, would the photographer have to take photos?
Alito also built on Jackson’s Santa question, asking about a hypothetical Black Santa at the other end of the mall. If, “he doesn’t want to have his picture taken with a child who’s dressed up in a Ku Klux Klan outfit [does] that Black Santa ha[ve] to do that?”
All the justices pressed each side to draw a limiting line. If the court says Lorie Smith does not have to provide her services for same-sex weddings, then what about the baker, the jeweler, the tailor, the photographer and the caterer?
Colorado Solicitor General Eric Olson said a business can sell any service it wishes, but that service has to be available to everyone. A website can include Christian biblical passages, and a Christmas shop can sell Christmas trees, but neither can refuse to sell their product to Jews, or, as in this case, same-sex couples, because that would be discrimination based on racial or religious status.
The hypotheticals just kept coming. Justice Amy Coney Barrett asked about a newspaper that decided to devote its wedding section only to same-sex couples during Gay Pride month. Would that be illegal discrimination against straight couples?
Justice Neil Gorsuch put the dilemma quite succinctly: “Last time around, we had cakes, as either expressing the maker’s point of view or the couple’s point of view. And that’s really at the heart of a lot of this.”
A decision in the case is expected by summer.