Does designing a web page for a client count as speech, so is the designer compelled by Colorado law? Designing a wedding page for same-sex couples This morning at the Supreme Court took center stage.
Creative 303 LLC with Elenis This morning comes to court and brings with it competing Supreme Court precedents on when the government can compel a business or agency to deliver a message or idea they object to. At the heart of the case, Lorie Smith, owner of Creative 303 LLC, wanted to design a web page for a wedding. But she has religious objections to same-sex marriage and doesn’t want to design the page to celebrate gay couples. That puts her at odds with Colorado’s anti-discrimination law, so she has gone to federal court to seek a ruling in her favor.
During more than two hours of argument, the justices discussed whether Smith was actually giving “expressive speech” if she did not post about herself on those pages, the difference between denying a client and denying a statement, and the Supreme Court’s Which precedents should influence the outcome of this case.
Kristen Waggoner, Smith’s attorney and Coalition for the Defense of Freedom, wants the court to turn to Hurley v Boston Irish American Gay, Lesbian and Bisexual CommunityIn a 1995 case, the Supreme Court ruled that organizers of the St. Patrick’s Day Parade in Boston could not be compelled to allow marchers to enter the parade carrying flags of gay organizations, which would have forced them to send a message of support for the parade organizers to disagree.
Colorado is represented by Deputy Attorney General Eric Olson and is backed by U.S. Attorney General Brian Fletcher. The Justice Department agrees with Colorado that Smith did not simply deny the option to all same-sex couples.They asked the court to use Rumsfeld v. Academic and Institutional Rights Forum, Inc. as a guiding precedent. The 2006 decision held that universities could be forced to make room for military recruiters, despite any moral objections they might have.
Smith has not been accused of rejecting anyone. She has asked the court to rule before she starts rejecting same-sex clients because it is consistent with her First Amendment rights. So this morning’s debate revolved around several hypothetical scenarios, as neither side has any actual examples of Smith rejecting anyone.
in a manner similar to those followers Masterpiece Cakeshop v. State of Colorado, the judges questioned the boundaries of what actually counts as speech or expression. Throughout the proceedings, Judge Elena Kagan mulled over the difference between a wedding website, where the designer simply plugs in the information given to them, and a website where the designer actually needs to craft specific information to celebrate the marriage. She noted that Creative 303 included examples of websites that didn’t appear to have any sort of celebratory message, but did wonder if Smith would be forced to add “God bless this league” to the website in violation of her religious beliefs. While there appears to be an agreement that she cannot be forced to do so, the judges are still struggling to find the line between speech and discrimination.exist masterpieceThis Supreme Court rejects the core issue. Now they are revisiting it.
Wagner thought the line was easy to pin down: Smith’s web page and its content both counted as Smith’s speech. It’s up to Smith to decide what she allows and doesn’t allow to include in the web page she’s designing. Olson and Fletcher argue that Smith’s rejection of same-sex marriage is essentially equivalent to rejection of same-sex customers (Wagner and Smith disagree), because in this case, the behavior and identity of the customers are “inseparable.”
More conservative judges seem inclined to side with Smith, concerned about the possibility of future hypothetical cases in which a freelance writer could be forced to write speeches for political candidates or positions he or she finds unpleasant . Will freelance PR professionals be forced to write press releases for the Church of Scientology?
Judge Amy Coney Barrett wondered whether a website serving the gay community could be required to post both straight and same-sex wedding announcements. Olson responded that the site might not bill itself as a “public facility,” but if it did, it would need to operate them. There was a rather brief discussion about whether there are restrictions on what the government classifies as “public accommodation”, which could have been more fleshed out.colorado seems to has a very broad definition This includes almost any good or service offered “to the public”.
Justice Neil Gorsuch noticed friend of the court briefly By Cato Institute and UCLA law professor Eugene Volokh (via warlock conspiracy) and Dale Carpenter, professor at Southern Methodist University’s Dedman School of Law (also warlock conspiracy) backed Smith.Although Volokh and Carpenter have Standing for Colorado Against Wedding Cake Baker Jack Phillips, they stood by Smith in this situation, arguing that “it was a verbal compulsion to compel her to create a website she objected to.” Gorsuch also, in passing, described the anti-discrimination training Phillips was ordered to undergo (before the Supreme Court ruled in his favor) as “re-education.”
Based on today’s debate, it’s hard to predict exactly what the Supreme Court will decide. Because of the intersection of First Amendment protections and public accommodation discrimination protections, the issue is wide-ranging and cuts across many areas. The ruling seems likely to favor Creative 303, but it’s also clear that the justices are looking for the right place to draw a fine line between protecting people from forced speech and the government’s interest in enforcing public accommodation laws. “How do you draw the line?” was a question asked by multiple judges on a variety of occasions. We’ll find out in the spring.