The US Supreme Court’s conservative majority appeared sympathetic to a woman who said she should not be compelled to make wedding websites for same-sex couples, in a case that pits freedom of speech against public anti-discrimination laws.
The high court heard arguments on Monday in a case brought by 303 Creative, which is owned by a Christian woman in Colorado who said a state law banning facilities from refusing to offer services based on sexual orientation would impinge on her right to freedom of speech.
The law, the Colorado Anti-Discrimination Act, requires entities selling to the public to offer services to any individual irrespective of their religion, sexual orientation, race or other “protected characteristic”.
Kristen Waggoner, the lawyer representing the company, said the Supreme Court in past cases had decided “to protect those who would believe marriage is between a man and a woman from having to express a view that violates their conscience”.
Some conservative justices indicated they were sympathetic to the company’s reasoning that it should not be compelled to create content that is opposed to the founder’s religious beliefs. They also signalled support for the designer’s argument that it is not discriminating against same-sex couples because it does not take issue with their sexuality, but rather with the message on potential wedding websites.
During questioning from conservative justice Amy Coney Barrett, Waggoner said the company would also refuse to make websites for heterosexual couples who fell short of the designer’s religious principles, such as individuals who would write on their website that they started a relationship by cheating on their partners.
Samuel Alito, another conservative justice, criticised an argument presented by Eric Olson, Colorado’s solicitor-general, who said in defence of the law that a designer was free to include any message on its websites but not to refuse to serve a customer based on sexual orientation or religion. Alito argued there was not much difference between the two and that Olson made a “sliver of an argument”.
In often heated exchanges, the three liberal justices strongly opposed the company’s case, raising concerns about where to draw the line and whether siding with the designer could allow others to potentially refuse patrons such as mixed-race or disabled individuals.
Ketanji Brown Jackson warned that the court’s ruling “could have implications for . . . strongly religious-held First Amendment invocations of rights”.
Sonia Sotomayor added that this “would be the first time in the court’s history that it would say that a business open to the public . . . could refuse to serve a customer based on race, sex, religion or sexual orientation”.
She also rejected the company’s theory that making a website for a wedding equates to communicating the designer’s own views. “You’re not inviting them to the wedding . . . so how does this become your message?” asked Sotomayor.
Brian Fletcher, a deputy solicitor-general at the US Department of Justice who spoke in support of Colorado, said a designer refusing to serve a same-sex couple was a “form of status-based discrimination” and that ruling in its favour would lead to “extremely sweeping results”.
Olson added there was “no way to cabin this . . . just to weddings or sexual orientation”.
The Supreme Court only recently heard a case involving the same Colorado law. In 2018, it narrowly ruled in favour of a baker who refused to make a wedding cake for a same-sex couple. Now, the court is re-examining the statute with a larger and more bold conservative majority.
Last term, the Supreme Court ruled in favour of a former high school coach who was dismissed for praying at football games, saying he was protected by constitutional rights to free speech and religious practice.