Earlier this week, the Supreme Court heard oral arguments in a case that involves the state of Colorado’s attempt to compel a web designer to create sites promoting marriages between same-sex couples. The high court is charged with deciding whether the case constitutes discrimination against a class of citizens protected under Colorado law or a violation of the web designer’s Constitutional right to free speech.

Web designer Lorie Smith has expressed her intention to use her business as a means to encourage marriage as understood biblically – as the union between a man and a woman. As such, Smith’s lawyers stated during oral arguments, that her business amounts to free speech and that the state of Colorado’s intention to force her to create wedding sites for same-sex couples is tantamount to an attempt to silence her speech.

Council representing Colorado says that Smith is running a business that offers a public service and that as such, the Colorado Anti-Discrimination Act – a law that prohibits businesses from denying services to anyone based on sexual orientation, gender identity, and gender expression and upon which the state is relying for its case – rightly prohibits her from discriminating against same-sex couples who want her services. The state’s lawyers say that they are not infringing upon Smith’s right to free speech.

The Supreme Court’s conservative justices seemed inclined to agree with Alliance Defending Freedom lawyer and Smith’s representative, Kristen Waggoner, who argued that as an artist, Smith produces content that “amounts to speech.” As such, it falls under the First Amendment. 

Some members of the court’s conservative majority seemed sympathetic to that argument during oral argument, seeing a distinction between unlawful discrimination and lawful speech.

The liberal justices on the high court presented Waggoner with questions that suggested the web designer’s actions were comparable to rejecting costumers because of race, religion, or disability. Their view aligned with the arguments presented by the state of Colorado.

But Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson peppered the website designer’s lawyer with hypothetical scenarios designed to show that turning down a same-sex couple seeking to celebrate a wedding is akin to rejecting customers because of their race, religion or disability.

A ruling on the case will most likely be made in July 2023.

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