The US Supreme Court heard more than two hours of argument Monday in a constitutional test of state public accommodation laws that protect same-sex couples from discrimination.
Four years ago, the high court skirted 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 returned 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 all, regardless of race, religion, sexual orientation, and gender. On the other hand, there are business owners who see themselves as artists and don’t want to use their talents to express a message they don’t agree with.
Defying the law is Lorie Smith, a custom web designer who opposes same-sex marriage. “I want to design for weddings that are consistent with my faith,” she says.
She is preemptively suing Colorado because she believes the state’s public accommodations mandate violates her right to free speech.
Questions from liberal judges
In Supreme Court on Monday, Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson had consulted Smith’s planned website, which includes typical information on dates, hotel accommodations, wedding registry, etc. So if she’s offering that kind of website to “Mike and Mary,” Kagan asked, why not the identical site for “Mike and Mark?”
Attorney Kristen Wagoner, who is representing Smith, said it would be unconstitutional forced speech. “When you change those names,” she said, “you’re changing the concept and the message.”
Sotomayor asked a question that was repeated several times. “What about people who don’t believe in interracial marriage?” she wants to know. For example, there might be business owners who say, “I’m not going to serve these people because I don’t think blacks and whites should get married.” Would this be permissible?
Jackson asked about a hypothetical photography business that recreates scenes with children sitting on Santa’s lap in a shopping mall. The project aims to take “nostalgia photographs”, with sepia colors that capture the feeling of the 1940s and 1950s, but because they “try to capture the feelings of a certain era, their policy is that only white children can be photographed with Santa Claus.” Would that be permissible? she asked.
Lawyer Wagoner dodged and weaved, never giving an answer.
The Judge Alito Hypothesis
Judge Samuel Alito, in turn, asked whether a Jewish photographer would have to take pictures for the Ashleymadison.com profile of a Jewish client. For the uninitiated, Ashleymadison.com is a website for married people who want to have affairs. Assuming this might violate the Jewish photographer’s beliefs about the sanctity of marriage, would the photographer have to take photos?
Alito also built on Jackson’s question about Santa, asking about a hypothetical black Santa at the other end of the mall. If “he doesn’t want his picture taken with a kid dressed in a Ku Klux Klan outfit [does] that black santa ha[ve] To do that?”
All the judges pressed each side to draw a boundary line. If the court says that Lorie Smith does not have to provide her services for same-sex weddings, what about the baker, jeweler, tailor, photographer, and caterer?
Colorado Attorney General Eric Olson said a business can sell any service it wants, but that service must be available to everyone. A website may include Christian Bible passages, and a Christmas store may sell Christmas trees, but it may not refuse to sell its product to Jews or, as in this case, same-sex couples, because that would be racial discrimination or religious. .
The hypotheses kept coming. Judge Amy Coney Barrett asked about a newspaper that she decided to dedicate her wedding section to same-sex couples only during Gay Pride month. Would that be illegal discrimination against heterosexual couples?
Judge Neil Gorsuch put the dilemma rather succinctly: “Last time, we had cakes, 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 the summer.
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