The United States Supreme Court heard oral arguments Dec. 5 in the case of a Christian website designer who is challenging a Colorado law that would force her to be willing to create custom websites for same-sex weddings if she designs them for weddings between one man and one woman.
Lorie Smith, owner of 303 Creative, argues that her constitutional right to free speech would be violated if she were compelled to create custom websites for same-sex weddings. Kristen Waggoner, CEO, president and general counsel of Alliance Defending Freedom (ADF), presented the argument on behalf of Smith.
In a livestream just before the court session began, Kelly Fiedorek, ADF senior counsel and government affairs director, explained the case and Smith’s position:
“The heart of this case is the fact that the government can’t force anyone to say something that they don’t believe,” Fiedorek said. “Free speech is for everyone, and notably, the Supreme Court has never compelled the speech of artists. What Lorie does is pure speech. She serves everyone regardless of who they are, including those who identify as LGBT. When she looks at a design project, what she looks at is, is this a message that I can create, that is consistent with my beliefs? It’s never about the person requesting the website … This is always, for Laurie, a question about the message and not the person.”
Fiedorek continued: “The question that’s before the court is: Can the government force an artist or really any American to speak or to stay silent? And the answer is clearly no, it’s unconstitutional, and every American has that freedom to create and to speak and to imagine consistent with the very core of who they are.”
During oral arguments, the justices explored how to balance public accommodation laws with free speech protections, and what kinds of businesses produce “speech” in the constitutional sense. They posed a number of hypothetical situations to attorneys for both sides, trying to determine what the court’s eventual decision might mean for other, future scenarios that may arise.
Many of the hypothetical examples had to do with whether or not Smith’s attorneys thought it should be allowable for a business to refuse service to other protected classes, such as disabled persons or interracial couples. Waggoner repeatedly stated that Lorie Smith willingly serves all persons, including LGBT clients, but she should not be compelled to create speech that conflicts with her religious views, such as promoting a same-sex wedding.
Justice Brett Kavanaugh observed that both sides seem to agree on many of the legal principles in the case and said the case appears to come down to the narrow question of how to characterize website designers: “Are they more like the restaurants and the jewelers and the tailors” (whose businesses tend to involve the provision of services rather than the creation of speech), “or are they more like the publishing houses and the other free speech analogues?”
Following oral arguments, Lorie Smith addressed a crowd outside the Supreme Court building.
“The freedom I’m standing for is not just for me,” she said. “I’m standing for every one of us, each and every one of us. Whether you share my beliefs or whether you have different beliefs, I’m standing for every American and our children’s children to think and create consistently with the core of who they are.”
Waggoner then addressed those gathered: “Make no mistake: If the government has the power to compel Lorie Smith’s speech, if it can eliminate her views from the public dialogue, as the 10th Circuit found was the law’s purpose, it has the power to do that to any one of us. … And, contrary to what Colorado argued today, public accommodation laws and the First Amendment can and do peacefully exist, and will continue to do so if Lorie wins. There is no reason for Colorado to crush beliefs when [other] states across this country respect free speech and ensure everyone has access to essential goods and services.”
The court’s decision is expected by the end of its current term, which is typically the end of June.
Above: Supporters of Lorie Smith and 303 Creative stand outside the Supreme Court Dec. 5. Photo: MediaPunch Inc/Alamy Stock Photo