A case decided in the last Supreme Court session dealt with the rights of businesses to refuse to conduct business with entities with whom they have religious differences. The case was 303 Creative v. Elenis.
A Colorado businesswoman, Lorie Smith, a developer of websites, had refused to develop a website for same-sex couples, based on her religious beliefs. She had lost her case in the lower courts, including the 10th U.S. Circuit Court of Appeals. Oddly, there was no evidence submitted that any same-sex couples had ever approached her business to develop such a website.
Colorado courts and Colorado law had established that businesses serving the public cannot deny services to that public based on religious preferences.
By a six-to-three decision – Sotomayor, Brown, and Jackson dissenting – the Court ruled that Ms. Smith could not be forced to provide services to those whose values were not consistent with her own.
Justice Gorsuch, writing for the majority said: “The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands [alluding to Colorado law]. All manner of speech – from pictures, films, paintings, drawings, and engravings; to oral utterance and the printed word – qualify for First Amendment protections; no less can hold true when it comes to speech like Ms. Smith’s conveyed over the internet.”
In a pretty short portion of what must have been a much longer opinion — relying on case law and previous Court findings — Justice Gorsuch has just exclaimed that all persons are free to think and speak as they please, but apparently, some persons are more free to do so.
In dissenting, Justice 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 wrote further that: “…the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.” One could easily question if the decision would have been the same had the groups being discriminated against by Ms. Smith been Jews or atheists or Christian Scientists or Lutherans or Mormons or Wiccans or Blacks or Native Americans (pick any religion or minority group).
The ACLU said that the decision means “certain businesses have a right to discriminate when selling customized, expressive services.”
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Kristen Waggoner, Smith’s attorney claimed that the Colorado law works to compel speech in violation of the First Amendment.
That seems to be somewhat of a stretch. Smith was not required by the Colorado law to endorse same-sex marriage. It should have been perfectly obvious that, in creating a website as a part of the service that she offers to the public, she was not publicizing her personal support for same-sex marriage. In fact, such a website would likely not have had any information within it identifying the designer.
For some reason, the Court has chosen to equate a business proposition with free speech, and given the work of people like Smith, a special place in the protections of the Constitution.
Colorado Solicitor General Eric Olson pointed out that the Colorado law does not regulate or compel speech; rather, it requires commercial enterprises to ensure that all customers have an equal ability to participate in those offered services. He cautioned that the decision could empower all businesses to describe their offerings as “expressive services” and refuse customers based on virtually any grounds.
Free speech has been more carefully characterized by numerous previous Supreme Court decisions, and this Court has dramatically expanded what can be considered to be free speech. It will certainly be interesting to see what sort of nut-case cases arise because of this opinion.
