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Supreme Court Seems Ready to Back Web Designer Opposed to Same-Sex Marriage

The justices are expected to settle a question left open in 2018: how to reconcile claims of religious liberty with laws barring discrimination based on sexual orientation.

Demonstrators and media in front of the Supreme Court.
The Supreme Court heard a case concerning a Christian graphic designer who intends to limit her wedding-related services to celebrations of heterosexual unions.Credit...Michael A. McCoy for The New York Times

WASHINGTON — The Supreme Court’s conservative majority seemed prepared on Monday to rule that a graphic designer in Colorado has a free speech right under the First Amendment to refuse to create websites celebrating same-sex weddings because of her Christian faith, despite a state law that forbids discrimination based on sexual orientation.

Such a ruling would be the latest in a string of victories for religious people and groups, especially Christian ones, at a court that has shifted to the right in recent years. It would also chip away at the right to same-sex marriage established in 2015, which two current justices have urged their colleagues to reconsider.

Several justices leaning in favor of the designer appeared to be searching for limiting principles so as not to upend all sorts of anti-discrimination laws.

They explored the differences between businesses engaged in expression and ones simply selling goods.

“The case comes down to a fairly narrow question,” Justice Brett M. Kavanaugh said. “Are they more like the restaurants and the jewelers and the tailors,” he added, suggesting that those businesses are not engaged in protected speech, “or are they more like, you know, the publishing houses and the other free speech analogues?”

Other justices focused on the difference between a client’s message and that of the designer.

“That’s really at the heart of a lot of this,” Justice Neil M. Gorsuch said, referring to the question of whether the speech at issue was “expressing the maker’s point of view or the couple’s point of view.”

Still others asked whether there was a difference between discriminating against gay couples and refusing to create messages supporting same-sex marriage.

“It’s about the message and not about the sexuality of the couple,” Justice Amy Coney Barrett suggested.

And Justice Samuel A. Alito Jr. said there was a difference between discrimination based on race versus sexual orientation, asking whether “it’s fair to equate opposition to same-sex marriage with opposition to interracial marriage.” He noted that Justice Anthony M. Kennedy’s majority opinion establishing a constitutional right to same-sex marriage in 2015 in Obergefell v. Hodges said that honorable people opposed such unions on religious grounds.

The bottom line, though, seemed to be that the court would not require the designer to create customized websites celebrating same-sex marriage despite the state anti-discrimination law.

The court’s three liberal members expressed deep qualms about the damage a ruling in favor of the designer could do to gay rights and to efforts to combat discrimination.

“This would be the first time in the court’s history,” Justice Sonia Sotomayor said, that it may rule that “a commercial business open to the public, serving the public, that it could refuse to serve a customer based on race, sex, religion or sexual orientation.”

Justice Barrett said that the line-drawing questions in the case were difficult and that where the court drew them would be consequential. “However we decide this case obviously applies to others,” she said.

The case concerns Lorie Smith, who owns a design company that says it serves gay customers but intends to limit a proposed wedding-related service to celebrations of heterosexual unions. She argued that requiring her to provide those services to gay and lesbian couples violated her right to free speech.

A Colorado law forbids discrimination based on sexual orientation by businesses open to the public as well as statements announcing such discrimination. Ms. Smith, who has not begun the wedding business or posted such a statement for fear of running afoul of the law, sued to challenge it.

Kristen K. Waggoner, a lawyer with Alliance Defending Freedom, a conservative Christian group that represents Ms. Smith, said her client served all people, including those who identify as L.G.B.T.Q., but objected to producing designs that convey messages at odds with her faith, no matter who asks her to create them.

“She believes same-sex marriages to be false,” Ms. Waggoner said of her client.

There were some points of agreement during the argument. Off-the-shelf products, even ones that express a message, must be sold to everyone, both sides agreed. Software that merely provided a template, Ms. Waggoner said, does not express the designer’s views about same-sex marriage.

“If it’s a plug-and-play website where the couple, for example, is putting in their names and using their website, then you don’t have compelled speech because you don’t have a speech creator,” she said.

Both sides also seemed to agree that Ms. Smith was free to put a standard statement on all of her wedding websites along the lines of this one, proposed by Justice Alito: “Made with love by Amber, who believes that a valid marriage is a union between one man and one woman.”

Eric R. Olson, Colorado’s solicitor general, said that was lawful so long as it was on every website, adding that “a website designer like that will lose a lot of opposite-sex couples as potential clients as well because they don’t want to be seen with that message.”

Justice Alito said the basic concession was a significant one. “You’re making a tiny sliver of an argument,” he told Mr. Olson.

Justice Elena Kagan said she did not know how to think about a similar hypothetical situation that seemed to undermine some of the distinctions the court was drawing. What if, she asked, a web designer made the phrase “God blesses this union” a standard part of every wedding website.

Those identical words, Justice Kagan said, could imply different messages in different contexts.

Ms. Waggoner, Ms. Smith’s lawyer, said “context changes meaning,” adding: “‘My body, my choice’ means something different to an anti-vaxxer or a pro-abortion proponent.”

Despite all of its complications, Monday’s case, a sequel to one from 2018 involving a Colorado baker that failed to yield a definitive ruling, is expected to settle the question of whether businesses open to the public and engaged in expression can refuse to provide services to potential customers based on their religious or other convictions.

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Lorie Smith, a web designer from Colorado, was at the center of the case argued before the Supreme Court on Monday.Credit...Michael A. McCoy for The New York Times

Mr. Olson, Colorado’s solicitor general, noted that Ms. Smith had not turned down any prospective gay customers or faced punishment and had instead sued pre-emptively.

Justice Kagan said that was a source of frustration.

“It really depends on the facts and on what exactly Ms. Smith is being asked or compelled to do, and that matters,” Justice Kagan said. “And we have a case without any of that in it.”

Lacking such facts, the justices and the lawyers arguing the case substituted hypothetical scenarios.

Brian H. Fletcher, a lawyer for the Biden administration arguing in favor of the Colorado law, said a ruling for Ms. Smith would allow a photographer to refuse to take “corporate head shots for women” based on objections to “the message that women should be leaders in the workplace.”

Justice Ketanji Brown Jackson asked whether a shopping mall that wanted to mimic the atmosphere of the movie “It’s a Wonderful Life” could refuse to include children who were not white in its pictures with Santa.

“That may be an edge case,” said Ms. Waggoner, adding that under the First Amendment, “this court has protected vile, awful, reprehensible, violent speech in the past.”

Justice Alito built on Justice Jackson’s question, asking whether “a Black Santa at the other end of the mall” could refuse to be photographed “with a child who’s dressed up in a Ku Klux Klan outfit.”

Mr. Olson said such costumes are not protected by the Colorado law, and Justice Kagan added it would presumably be “the same Ku Klux Klan outfit regardless whether the child was Black or white.”

Justice Alito responded with apparent sarcasm. “You do see a lot of Black children in Ku Klux Klan outfits,” he said.

Lower courts have generally sided with gay and lesbian couples who were refused service by bakeries, florists and others, ruling that potential customers are entitled to equal treatment, at least in parts of the country with laws forbidding discrimination based on sexual orientation.

The owners of businesses challenging those laws have argued that the government should not force them to choose between the requirements of their faiths and their livelihoods. Their opponents say that businesses open to the public must provide equal treatment to potential customers.

The case before the justices, 303 Creative L.L.C. v. Elenis, No. 21-476, is a free speech challenge that only incidentally concerns religion.

Ms. Smith’s lawyers had also asked the Supreme Court to decide whether the Colorado law violated her right to the free exercise of religion and to consider whether to overrule an important precedent from 1990, Employment Division v. Smith.

In that case, the Supreme Court ruled that laws that are neutral and apply generally could not be challenged on the ground that they violated the First Amendment’s protection of the free exercise of religion.

That decision, arising from a case involving the use of peyote in Native American religious ceremonies, is unpopular among conservative Christians, who say it does not offer adequate protection to religion, and with some of the justices. Last year, the court’s three most conservative members — Justices Alito, Gorsuch and Clarence Thomas — said it was time to overrule the 1990 decision.

In the new case from Colorado, though, the court limited its review to the question of whether the Colorado law violates the First Amendment’s protection of free speech.

The precise question the justices agreed to decide is “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”

Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002. More about Adam Liptak

A version of this article appears in print on  , Section A, Page 1 of the New York edition with the headline: Justices Weigh Religion Rights Vs. Bias Laws. Order Reprints | Today’s Paper | Subscribe

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