WASHINGTON — The Supreme Court will hear arguments on Monday over whether a graphic designer in Colorado has a First Amendment right to refuse to create websites celebrating same-sex weddings based on her Christian faith despite a state law that forbids discrimination based on sexual orientation.
The case, a sequel to one from 2018 involving a Colorado baker that failed to yield a definitive ruling, is likely 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.
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 violates her right to free speech.
“If a client who identifies as gay asked her to design graphics for his animal rescue shelter or to promote an organization serving children with disabilities, Smith would happily do so,” Ms. Smith’s lawyers told the justices in a brief. “But Smith will decline any request — no matter who makes it — to create content that contradicts the truths of the Bible, demeans or disparages someone, promotes atheism or gambling, endorses the taking of unborn life, incites violence, or promotes a concept of marriage that is not solely the union of one man and one woman.”
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.
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Philip J. Weiser, Colorado’s attorney general, told the justices in a brief that there was nothing concrete for the Supreme Court to decide. “The record contains no evidence,” he wrote, “that anyone has asked the company to create a website for a same-sex wedding; that Colorado has threatened enforcement; or that any future wedding website would convey a message that would be attributed to the company.”
In any event, he wrote, the Colorado law was constitutional. Ruling otherwise, he said, would have unacceptable consequences.
“A business could, based on its claimed beliefs, refuse to bake for Catholic baptisms because it is pro-choice, photograph reunions of Black families because it opposes racial equality or create floral arrangements for events celebrating women’s business achievements because it believes only men should work outside the home,” Mr. Weiser wrote in another brief.
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.
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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 Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — 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 in the new case 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.”