Lorie Smith says she’s just trying to speak her mind. The Colorado website designer claims her ability to do so is being thwarted by a state law that prohibits her from turning away LGBTQ+ people. “Colorado is censoring and compelling my speech,” Smith contends. “Forcing me to communicate, celebrate, and create for messages that go against my deeply held [religious] beliefs.”
In a case now before the U.S. Supreme Court, Smith is seeking the right to refuse to design wedding websites for same-sex couples, arguing this would violate her Christian values.
No same-sex couple has tried to hire Smith to design a wedding website, and the state of Colorado has not taken any legal action against her. Her lawsuit over Colorado’s law barring public accommodations—businesses open to the public—from discriminating against potential customers based on sexual orientation, is entirely preemptive.
Smith’s attorney, Kristen Waggoner of the “faith-based legal organization” Alliance Defending Freedom, earlier represented Colorado baker Jack Phillips, who was prosecuted under this same law for refusing to make a wedding cake for a same-sex couple. In a 2018 decision, the Supreme Court found that the state had shown anti-religious bias toward Phillips but did not settle the question of whether businesses can refuse service to LGBTQ+ people due to religious objections.
Smith and her team are arguing, essentially, that discrimination is protected speech for people engaged in expressive services.
Now the high court, with a 6-3 conservative majority, is poised to decide, once and for all, whether the Colorado law violates the First Amendment. It is likely to do so in a way that expands the ability of businesses to deny services to members of protected classes.
The case, 303 Creative LLC v. Elenis, pits freedom of speech against the right to be free from discrimination based on race, gender, religion, or sexual orientation. Smith and her team are arguing, essentially, that discrimination is protected speech for people engaged in expressive services. Indeed, they claim that Colorado’s law amounts to coerced speech, because it forces people like Smith to convey that they are OK with same-sex marriage, even if they aren’t.
It does no such thing. Smith is free to not do business with the general public. She’s free to say that she doesn’t believe same-sex couples should be allowed to marry. She would even be within her rights to post a denunciation of same-sex marriage on every page of the websites she designs.
Opponents of Smith’s lawsuit, prominently including the American Civil Liberties Union, have warned that a ruling in her favor would open the door to wholesale discrimination. “If 303 Creative prevails here, then any business that can be characterized as expressive, and that’s a lot of businesses, can start putting up signs saying no Jews served, no Christians served, no Blacks served,” David Cole, the ACLU’s national legal director, told the Associated Press. “We had that practice during Jim Crow, I don’t think we want that practice back again.”
Actually, some people might, so long as the practice targets LGBTQ+ people. And among these people, it appears, are a majority of the Justices on the U.S. Supreme Court.
During oral arguments in the case in early December, most of the court’s nine Justices left little doubt as to which way they will rule.
“In what other case have we upheld compelling speech—in other words, not simply just restricting speech but actually compelling an individual to engage in speech contrary to her beliefs?” mused Chief Justice John Roberts, fully buying into the highly questionable argument advanced by Smith and her attorneys.
Justice Clarence Thomas, meanwhile, argued that Smith’s web design business is different from other commercial enterprises in that it is about speech and art: “This is not a hotel. This is not a restaurant. This is not a riverboat or a train.” Justice Neil Gorsuch insisted on calling the training session on Colorado’s law that Phillips had to attend a “re-education program.” And Justice Amy Coney Barrett demanded, incredulously, “How can you disagree . . . ?” that what was being asked of Smith was “compelled speech.”
Eric Olson, Colorado’s solicitor general, noted in response that Smith was seeking the right to deny service even to a same-sex couple who wanted the “exact same” wedding website design as one done for a heterosexual couple, explicitly because of “who they are.”
Both sides filled in the case’s lack of actual facts with speculation about one hypothetical after another. Justice Ketanji Brown Jackson, who endearingly shortened the term to “hypo,” asked whether a white mall Santa could claim the right to pose with only white children, which Justice Samuel Alito spun into a fantasy about forcing a Black Santa to pose with a child in a Ku Klux Klan outfit. Would this also be allowed? (Olson: “No, be
Alito also wanted to know whether someone in the business of writing customized wedding vows can be “forced to write vows or speeches that espouse things they loathe?” (Olson: “No.”) Justice Brett Kavanaugh, the sole court conservative to express qualms about the consequences of ruling in Smith’s favor, asked whether the law would allow a publishing house to accept only books that take positions on abortion or same-sex marriage with which it agrees. (Olson: “Of course, [because] a publishing house is not a public accommodation”—as anyone who has ever tried to get a book published knows. Sheesh.)
Emerging from this murky mess, which dragged on for two hours and twenty-five minutes, more than twice the allotted time, were a few brief moments of clarity. One was when Justice Elena Kagan asked Waggoner, “What is the speech that is required of your client that would violate the First Amendment?” Waggoner’s reply: “She believes that same-sex weddings contradict scripture and she’s announcing a concept of marriage that she believes to be false.” Switch out “same-sex” in this sentence for “interracial” and see how it reads.
Another moment of clarity came when Justice Sonia Sotomayor noted that, if Smith’s position is upheld, “this would be the first time in the court’s history [that] a commercial business open to the public, serving the public . . . could refuse to serve a customer based on race, sex, religion, or sexual orientation.” Olson affirmed that this is true.
Sadly, the Supreme Court is seemingly about to make history. A ruling on the case is expected by the end of June.
Sidebar: When Speech Is a Fireable Offense
As the Supremes sort out whether Lorie Smith’s First Amendment rights are being violated even though she has suffered no actual consequences, a little-noticed case in Wisconsin concerns the firing of a person over speech that is arguably not protected.
Marissa Darlingh was terminated from her job as an elementary school counselor after making what a Milwaukee Public Schools spokesperson characterized as a “vulgar, insensitive, and disrespectful tirade aimed directly at the students in her care.”
Darlingh, who has filed a federal lawsuit over her dismissal, declared at an anti-trans rally at the state capitol in April 2022: “Not a single one of my students, under my fucking watch, will ever, ever transition socially and sure as hell not medically. Absolutely not.” She added, “Fuck transgenderism. Fuck it.” She also wrote “Protect kids from trans” in chalk on the front step of her house.
“As a private citizen, I have the right to express my views concerning gender ideology on my own time, and identifying myself as a school counselor doesn’t negate that right,” Darlingh said in a statement. “My speech had little to no impact on my students, their educational experience, or our therapeutic relationship.”
American Civil Liberties Union National Legal Director David Cole begs to differ.
“Public employees can be terminated for speech off the job if it undermines their ability to perform their jobs,” he tells The Progressive in an email exchange. Darlingh “identified herself as a school employee and stated that she would act in ways that were contrary to school policy. Just as police officers can lose their jobs for engaging in racist speech off the job if it would undermine their ability to do their job, so a guidance counselor who espouses prejudice against some of the very students she is supposed to be guiding can likely be fired.”
Cole says the school district would also be within its right to fire “a guidance counselor who said at a Black Lives Matter rally [that] white kids don’t deserve to go to college, and I’m going to do my best to make sure they don’t. Or one who said at a men’s rights rally, women’s place is in the home, so I’m going to advise all my female students not to consider college. Surely the school would be entitled to let those guidance counselors go, even though, were they not employees, those statements would be protected by the First Amendment.”
Darlingh is being represented by the Wisconsin Institute for Law & Liberty, a conservative law firm. It contends that the district violated her “clearly established Constitutional rights under the First Amendment and the Due Process Clause.”
It’s the kind of case some Supreme Court Justices would no doubt love to decide.