Justices Spar in Latest Clash 12/06 06:15
The Supreme Court 's conservative majority sounded sympathetic Monday to a
Christian graphic artist who objects to designing wedding websites for gay
couples, the latest collision of religion and gay rights to land at the high
WASHINGTON (AP) -- The Supreme Court 's conservative majority sounded
sympathetic Monday to a Christian graphic artist who objects to designing
wedding websites for gay couples, the latest collision of religion and gay
rights to land at the high court.
The designer and her supporters say that ruling against her would force
artists -- from painters and photographers to writers and musicians -- to do
work that is against their beliefs. Her opponents, meanwhile, say that if she
wins, a range of businesses will be able to discriminate, refusing to serve
Black, Jewish or Muslim customers, interracial or interfaith couples or
Over more than two hours of spirited arguments, the justices repeatedly
tested out what ruling for the designer could mean, using detailed and
sometimes colorful hypothetical scenarios. Those included a Black Santa asked
to take a picture with a child dressed in a Ku Klux Klan outfit, a photographer
asked to take pictures for the marital infidelity website Ashley Madison, and
an invented food business called "Grandma Helen's Protestant Provisions."
The case comes at a time when the court is dominated 6-3 by conservatives
and follows a series of cases in which the justices have sided with religious
plaintiffs. Across the street from the court, meanwhile, lawmakers in Congress
are finalizing what would be a landmark bill protecting same-sex marriage,
legislation prompted by a different high court case from earlier this year.
During arguments Monday the court's three liberal justices expressed
concerns about ruling for website designer and graphic artist Lorie Smith while
conservatives suggested support for her.
Justice Neil Gorsuch, one of three high court appointees of former President
Donald Trump, described Smith as "an individual who says she will sell and does
sell to everyone, all manner of websites, (but) that she won't sell a website
that requires her to express a view about marriage that she finds offensive."
Smith, who is based in Colorado, doesn't currently create wedding websites.
She wants to but says her Christian faith prevents her from creating websites
celebrating same-sex marriages.
Colorado, like most other states, has what's called a public accommodation
law that says if Smith offers wedding websites to the public, she must provide
them to all customers. Businesses that violate the law can be fined, among
Smith says the law violates her First Amendment rights. The state disagrees.
A looming question during Monday's arguments: At what point does an
objection to serving someone cross the legal line?
Justice Ketanji Brown Jackson, one of the court's three liberals, asked
whether a photography store in a shopping mall could refuse to take pictures of
Black people on Santa's lap.
"Their policy is that only white children can be photographed with Santa in
this way, because that's how they view the scenes with Santa that they're
trying to depict," said Jackson, one of the court's two Black justices.
Jackson's fellow liberal Justice Sonia Sotomayor said if the court rules for
Smith, it would be the first time the justices would say 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."
Sotomayor repeatedly pressed Smith's lawyer on what business owners could
refuse to do. "How about people who don't believe in interracial marriage? Or
about people who don't believe that disabled people should get married? Where's
the line?" Sotomayor asked.
But conservative Justice Samuel Alito, who seemed to favor Smith, asked
whether it's "fair to equate opposition to same-sex marriage to opposition to
interracial marriage." And he pointed to language in the court's 2015 opinion
declaring a nationwide right to same-sex marriage about "honorable people who
object to same-sex marriage."
Alito was also the justice who asked whether a Black person dressed as Santa
could refuse to take a picture with a child dressed in a Ku Klux Klan outfit.
Eric Olson, arguing on behalf of Colorado, responded "No," because Ku Klux Klan
outfits wouldn't be protected under public accommodation laws.
Justice Elena Kagan added that Olson's response wasn't based on the race of
the child wearing the outfit. In an awkward moment, Alito responded: "You do
see a lot of Black children in Ku Klux Klan outfits, right? ... All the time."
The case is the second in which the court has wrestled with a case involving
a Christian business owner who doesn't want to provide a service for a same-sex
wedding. Five years ago, the justices heard a different challenge involving
Colorado's law and a baker, Jack Phillips, who objected to designing a wedding
cake for a gay couple. That case ended with a limited decision and set up a
return of the issue to the high court. Smith's lawyer, Kristen Waggoner of the
Alliance Defending Freedom, also represented Phillips.
Smith's opponents include the Biden administration, the American Civil
Liberties Union and the NAACP Legal Defense & Educational Fund. Twenty mostly
liberal states, including California and New York, are supporting Colorado,
while 20 other mostly Republican states are supporting Smith.
White House press secretary Karine Jean-Pierre declined to weigh in on the
case specifically following oral arguments Monday but said the "administration
believes that every person, no matter their sex, race, religion or who they
love, should have an equal access to society."
The White House is currently awaiting final passage in Congress of the bill
protecting same-sex and interracial marriage. It gained momentum following the
Supreme Court's decision earlier this year to end constitutional protections
for abortion. That decision to overturn the 1973 Roe v. Wade ruling prompted
questions about whether the court -- now that it is more conservative -- might
also overturn its decision declaring a nationwide right to same-sex marriage.
Justice Clarence Thomas explicitly said that decision, Obergefell v. Hodges,
should be reconsidered.
During arguments at the court Monday, Justice Brett Kavanaugh asked
Waggoner, Smith's lawyer, about what would happen if the court sides with her.
And he pointed to a section of her written submission to the high court where
she said Smith as an artist is different from other business people including
hairstylists, landscapers, plumbers, caterers, tailors, jewelers and
restaurants that do not generally communicate a message through their work.
If she wins, Waggoner said, she might bring similar cases on behalf of
others whose work involves creative inspiration. But, she said, "I won't be
coming back with a caterer."