Conflict of Rights and Free Speech

The Supreme Court is attempting to distinguish between two categories of rights: safeguards for free speech and those accorded to LGBT people.

The Colorado website designer who opposes same-sex marriage was up before the court yesterday to argue whether or not he should be forced to work with homosexual couples.

The designer, Lorie Smith, said she wished to grow her company and provide wedding websites. Due to her religious convictions, she did not want to offer her wedding services to LGBT clientele. She was concerned that she would violate state legislation in Colorado that forbids businesses from discriminating on the basis of sexual orientation.

Both sides contend that the case could have significant ramifications. Smith's supporters contend that a judgment against her would violate the First Amendment by allowing the government to compel speech that the speaker disagrees with. According to her opponents, a decision in her favor would effectively legitimize all forms of discrimination currently outlawed against specific classes, such as races or disabilities, while masking it as exercising one's right to free speech.

In 2017, the court heard a case regarding a bakery that happened to be located in Colorado. However, the judges at the time were more evenly divided than they are now, and they made a limited decision that did not resolve the most important questions. According to my colleague Adam Liptak, who covers the court, the court now has a 6-to-3 conservative majority, making it more probable that it will take quick action and decide in Smith's favor.

A Precarious Slope

Businesses that provide services to the general public are prohibited by Colorado law from turning away clients because of their race, sexual orientation, or any other protected trait. Doughnuts can be refused by a baker to anyone at all. But it is unlawful discrimination if a baker declares he would only produce doughnuts for white people.

What if, however, the company's work is profoundly expressive, much like a website maybe? Liberal Supreme Court Justice Elena Kagan used the following illustration: A website designer might feel at ease with a design that says "God bless this union" for straight couples but not for gay couples. If the law requires her to provide that design to gay couples, it might be considered forcing her to voice opinions she doesn't agree with.

This illustrates the central question in the case: Is Smith opposing same-sex marriage in any way or is she discriminating against gay people? The distinction between a case that is primarily about free speech rights or nondiscrimination legislation is the solution.

The issue for Smith's supporters is that other forms of discrimination may also be justified using a similar free speech defense. It is possible for a white wedding photographer to claim that they are against interracial marriage if they decline to work with Black or mixed-race couples. The same might be done to white or mixed-race couples by a black videographer. Or a group might reject a disabled pair due to eugenic beliefs.

The conservative justices in particular wrestled with the possibility of a decision that permits additional forms of discrimination throughout yesterday's sessions. On where to draw the line, no obvious answer was found. Adam informed me that "it's actually a difficult problem for them."

Uncertain Results

As it did in the Colorado bakery case, it's likely that the court will defer ruling on the matter. Given that Smith had not yet launched her wedding website business, conservative Justice Clarence Thomas questioned whether the case was actually "ripe," or ready for the court to weigh in, at the opening of yesterday's sessions.

But Adam said that the justices were aware of such difficulties before taking the case, making a punt by them unlikely.

The issue then becomes how the conservative majority resolves all the complex problems that a decision in Smith's favor would bring to light.