Supreme Court says First Amendment entitles web designer to refuse to do gay weddings

Nina Totenberg

June 30, 2023 / 7:08 am

caption: The setting sun illuminates the Supreme Court building on Capitol Hill in Washington on Jan. 10, 2023.

Updated June 30, 2023 at 11:30 AM ET

The U.S. Supreme Court ruled 6-3 along ideological lines that the First Amendment bars Colorado from "forcing a website designer to create expressive designs speaking messages with which the designer disagrees."

Writing for the conservative majority, Justice Neil Gorsuch said: "Ms. [Lori] Smith seeks to engage in protected First Amendment speech; Colorado seeks to compel speech she does not wish to provide. As the Tenth Circuit observed, if Ms. Smith offers wedding websites celebrating marriages she endorses, the State intends to compel her to create custom websites celebrating other marriages she does not. ... If she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs, sanctions that may include compulsory participation in 'remedial . . . training,' filing periodic compliance reports, and paying monetary fines. That is an impermissible abridgement of the First Amendment's right to speak freely."

In her dissent, Justice Sonia Sotomayor wrote: "Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class."

She added: "Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities. New forms of inclusion have been met with reactionary exclusion. This is heartbreaking. Sadly, it is also familiar. When the civil rights and women's rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims."

For years, the justices have side-stepped the difficult issue presented by business owners who don't want to comply with public accommodation laws for same-sex weddings. Florists, photographers, and a baker all went to court arguing that they should not have to use their artistry for gay weddings. But the court either declined to review lower court rulings or, in the case of the baker who refused to make a custom wedding cake for a gay couple, the court punted.

This year, however, the new conservative supermajority reached out in an unusually aggressive manner, agreeing to decide a case in which nobody had yet filed a claim of discrimination.

Instead, Smith, a web designer who is opposed to same sex marriage, pre-emptively sued the state of Colorado, claiming that the state law banning discrimination based on sexual orientation violates her right of free speech.

Smith who believes that marriage should only be between a man and a woman, said she wanted to create a custom web-page business for weddings, but could not do so because under Colorado law she would have been forced to create websites that violate her faith. Colorado said it didn't want to dictate what Smith said in her web designs, but that if her business is open to the public--as it is--it had to serve everyone.

On Friday, the court ruled against the state and for the web designer in a decision that could have profound consequences in Colorado and 29 other states that have laws requiring businesses open to the public to serve everyone, regardless or race, religion, ethnicity, gender or sexual orientation.