Supreme Court To Decide Whether Some Businesses Can Refuse To Serve Gay Customers

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The Supreme Court said Tuesday it will decide whether certain businesses with religious objections can refuse to offer their services for same-sex weddings, a question it has consistently ducked since its landmark gay marriage ruling in 2015.

The case involves a Colorado website designer, Lorie Smith, who planned to expand her business to serve couples getting married. Because of her religious convictions, she wanted to post a statement on her site to say that she would not offer her services for same-sex weddings.

But a federal appeals court ruled that her refusal and her proposed statement would violate Colorado’s anti-discrimination law.

In a brief order, the Supreme Court said it would take up the case to consider “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”

The court will hear the case in its next term, which begins in October.

Smith’s lawyers, in urging the court to take up the issue, said the Colorado law “compels speech based on viewpoint, and creates a pro-LGBT gerrymander by requiring religious artists to celebrate same-sex marriage while allowing other artists to decline messages like ‘God is dead.’”

The case is unusual because it does not involve a lawsuit filed by any customers who were denied service. Instead, it involves a dispute between the business owner and the state, which began when Smith sought an exemption from the law that bans discrimination on the basis of sexual orientation.

For that reason, Colorado urged the court not to take the case.

“The record contains no evidence 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,” its lawyers said in their legal filings.

They said the state law is a straightforward regulation of commercial service and does not discriminate on the basis of religion because it treats all religions equally. Besides, the state said, even if a business offers a service that involves an expressive element, people assume that the message expresses the views of the customers, not the business.

The Supreme Court has repeatedly refused in the past to take up the issue raised by similar cases, involving wedding photographers, florists, and a Colorado baker. One potential question in those cases was whether such actions as baking a cake or arranging flowers were mainly expressive or simply amounted to offering a service or product.

In agreeing to hear this latest case, the court declined to take up a separate issue raised by Smith on whether the state’s actions violate her religious freedom. As teed up for the next term, the case presents this question: Is there a free-speech exception to laws intended to prevent discrimination?