WASHINGTON — The Supreme Court on Tuesday agreed to decide whether a conservative Christian woman who designs websites may refuse to work with same-sex couples, even though a state civil rights law requires businesses to be fully open to all customers without regard to their sexual orientation.
The case is seen as a follow-up to the Masterpiece Cakeshop case, which posed a clash between religious rights and gay rights, but left the matter largely unresolved.
In that case, baker Jack Phillips, who refused to make a wedding cake for two men, won a narrow victory with a 7-2 decision in 2018 that found he had been treated unfairly by the state’s civil rights commission.
The justices did not rule on his constitutional claim based on free speech. Since then, two new conservatives—Justices Brett M. Kavanaugh and Amy Coney Barrett—have joined the court.
Now the same lawyers for the Alliance Defending Freedom who represented the baker are back before the court and are seeking a broader ruling that would give conservative Christians a partial exemption from state laws that would require them to participate, even indirectly, in a same-sex marriage.
The exemption, they say, would be based on 1st Amendment rights to freedom of speech and free exercise of religion. In agreeing to hear the case, however, the justices limited the issue to freedom of speech only.
If they win, the decision could have a significant impact in California and 19 other states that forbid businesses from discriminating against LGBTQ customers. It could give business owners an exemption based on their religion to refuse to provide flowers, photography or other products or services for a same-sex marriage.
Their client, Lorie Smith, is a graphic artist and web site designer who says she wants to expand her business to design custom websites for weddings, but not for same sex-couples.
She is “willing to work with all people regardless of race, creed, sexual orientation, and gender,” her lawyers told the court. “But she cannot create websites that promote messages contrary to her faith, such as messages that condone violence or promote sexual immorality, abortion, or same-sex marriage.”
She sued seeking a ruling that would uphold her right to a free-speech exemption, but she lost before a federal judge and in a 2-1 decision by the 10th Circuit Court in Denver.
Her appeal in 303 Creative vs. Elenis contends the appeals court “took the extreme position that the government may compel an artist—any artist—to create expressive content, even if that content violates her faith.... If left in place, the 10th Circuit’s decision will allow officials to compel Democratic speechwriters to plug Republican candidates and Muslim artists to create cartoon parodies of Allah.”
The state’s attorneys had urged the court to deny the appeal. They argued the state law was not a restriction on free speech, but a ban on discrimination by businesses engaged in commerce.
“Requiring the company to produce the same services for same-sex couples that it produces for opposite-sex couples does not require it to speak in favor of same-sex marriage,” they said.
The case will be scheduled for arguments in the fall.
