WASHINGTON (AP) — The Supreme Court is being warned about the potentially dire consequences of a case next week involving a Christian graphic artist who opposes creating wedding websites for same-sex couples.
The designer-judge rule will expose not only same-sex couples to discrimination, but also people of color, immigrants, Jews, Muslims and others, liberal groups say.
Ruling against her and the judiciary will force artists – from painters and photographers to writers and musicians – to make work that goes against their faith, conservative groups argue.
Both sides described to the court what lawyers sometimes call “a parade of horrors” that could result if the ruling doesn’t go their way.
The case marks the second time in five years that the Supreme Court has taken up the issue of a business owner who says their religion prevents them from creating artwork for a gay wedding. This time, most experts expect the court, now dominated 6-3 by conservatives and particularly sympathetic to religious plaintiffs, to side with Denver-area designer Lorie Smith in the case.
But the American Civil Liberties Union, in a court brief, was among those who called Smith’s argument “carte blanche to discriminate whenever a company’s product or service can be characterized as ‘expressive,’ a business category that could range from “luggage to bedding to landscaping.” Those businesses, they said, could announce, “We do not serve blacks, gays or Muslims.”
Smith’s attorneys at the Arizona-based Alliance Defending Freedom say that’s not true. “I think it’s disingenuous and disingenuous to say that a win for Lorie in this case would take us back to those days when people … were denied access to essential goods and services based on who they were,” the lawyer said ADF Kellie Fiedorek. adding: “A win for Lorie here would never allow such behavior as some of the hypotheticals they are raising.”
Smith’s case follows that of Colorado baker Jack Phillips, who objected to creating a wedding cake for a gay couple. The couple sued, but the case ended in a limited verdict. Phillips’ attorney, Kristen Waggoner, returned to the Supreme Court on Monday to argue for Smith.
Smith wants to start offering wedding websites, but says her Christian faith prevents her from creating websites that celebrate same-sex marriage. That could get them in trouble with state law. Colorado, like most other states, has a public accommodation law that says if Smith offers wedding websites to the public, she must provide them to all customers. Businesses that break the law can be fined, among other things.
Smith, for her part, says the Colorado law violates the Constitution’s First Amendment by forcing her to express a message she disagrees with.
Smith’s other opponents include the Biden administration and 20 Democratic-leaning states, including California, New York and Pennsylvania. The states told the court in one of 75 legal briefs filed by outside groups in the case that accepting Smith’s arguments would allow widespread discrimination.
“A bakery whose owner opposed interracial relationships could refuse to bake wedding cakes for interracial couples,” the states said. A “real estate agency whose owner opposed racial integration might refuse to represent black couples seeking to buy a home in a predominantly white neighborhood; or a portrait studio whose owner opposes interracial adoption might refuse to photograph white parents with their black adopted children.”
These race-based examples could draw particular attention in a court with two black justices, Clarence Thomas and Ketanji Brown Jackson, who are married to white spouses, and another justice, Amy Coney Barrett, who has two adopted children who I am colored. But states have set an example that also involves a person’s national origin. “A tattoo parlor could print American flag tattoos on customers born in the United States while refusing to sell identical tattoos to immigrants,” they said.
Brianne Gorod of the Constitutional Accountability Center, representing a group of law professors, issued other examples of what could happen if Smith succeeds at the high court.
“A web designer could refuse to create a web page celebrating the retirement of a female CEO — in violation of Colorado’s ban on sex discrimination — if he believed that all women had a duty to stay at home and raise children. Similarly, a furniture maker—who considers his furniture pieces to be artistically expressive—might refuse to serve an interracial couple if he believes that interracial couples should not share a home together. Or an architect might refuse to design a house for an interfaith couple,” she told the court.
Smith’s supporters, however, including 20 mostly Republican-leaning states, say ruling against her also has negative consequences. A lawyer for the CatholicVote.org education fund told the court that if the lower court’s ruling stands and Smith loses, “a Jewish choreographer will have to put on a dramatic Easter performance, a Catholic singer will have to sing at a wedding of two divorce , and a Muslim who operates an advertising agency will not be able to refuse to create a campaign for a liquor company.”
The Jewish Coalition for Religious Freedom put it differently, telling the court that a Jewish baker may have to fulfill a neo-Nazi’s request for a cake that says “Happy November 9th!” — a reference to Kristallnacht, the night in 1938 when the Nazis burned synagogues and vandalized Jewish businesses in Germany and Austria.
Alan B. Morrison, a constitutional law expert at Georgetown University, pointed out that Smith does not currently make wedding websites, which makes the case particularly speculative and, he says, problematic. Still, Morrison chuckled at some of the hypothetical scenarios both sides came up with, suggesting they were “a bit far-fetched”.
The examples, he said, are “the kind of thing a law professor would think of.”
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