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Conservative Supreme Court Justices favor anti-gay web designer

Conservative Supreme Court Justices signaled sympathy for a Christian web designer who refused services for same-sex couples during some fantastical oral arguments where Justice Samuel Alito compared the case to forcing a black mall Santa to take images with kids in KKK outfits.

Alito also questioned on Monday if a Jewish photographer could be forced to take images for a client’s account despite his religious opposition to infidelity.

Lorie Smith, a Colorado-based web designer, opposes same-sex marriage on religious grounds.She sued the state in 2016 seeking exemptions for a Colorado law barring discrimination on the basis of sexual orientation. Smith, 38, claims her free speech right tops this state statute and allows her to reject request from same-sex couples.

The White House said that it doesn’t go against the First Amendment to force businesses available to the public to engage in speech with which they may disagree.

‘For decades, nondiscrimination public accommodations laws have coexisted with the First Amendment,’ President Joe Biden’s Press Secretary Karine Jean-Pierre said on Monday.

Conservative justices on the Supreme Court appear sympathetic toward Lorie Smith, a Christian website designer in Colorado who is refusing to provide services to same-sex couples.Pictured: Smith appears outside the Supreme Court after two hours of oral arguments on Monday, December 5

Protesters appears outside the Supreme Court in Washington, D.C.on Monday in support of Smith and her right to refuse services

Other demonstrators showed up to protests against Smith as she claims her religious views exempt her from Colorado accommodation laws that include sexual orientation

‘Courts have recognized that we can require businesses open to public to service people regardless of their backgrounds – even when that means businesses must incidentally engage in speech which they disagree upon,’ she continued.’So this is no reason to upend this balance right now.’

Conservative Justice Neil Gorsuch claimed during his opening argument Monday that a Colorado cake shop owner was forced to undergo a ‘reeducation program’ after refusing to make a wedding cake for a same-sex couple in a related case.

That case in 2018 saw the Court rule that the Colorado Civil Rights Commission acted with unusual religious animus in 2012 when it ordered cake artist Jack Phillips and his staff at Masterpiece Cakeshop to receive anti-discrimination training.

While it’s unclear how the high court will rule in the case, the legal arguments on Monday suggest they could go in favor of the web designer considering the 6-3 conservative majority.A ruling is expected in June.

The 2018 case did not make a major judgment on compelled speech, which is the issue at the heart of the case Monday regarding 303 Creative refusing business to same-sex couples. 

Conservative Supreme Court Justice Samuel Alito had a few quotable moments when he questioned if a black mall Santa would need to pose for images of kids with KKK outfits, or if a Jewish photographer would be required to take images for a dating profile

The major case being heard on Monday pits LGBT rights against a claim that freedom of speech exempts artists from anti-discrimination laws.

Oral arguments on Monday included a series of questions directed at both sides.

Alito questioned whether a black Santa Claus at the mall is obligated, even against his desire, to take images with children if they are dressed in Ku Klux Klan outfits.

Colorado Solicitor General Eric Olson said the hypothetical Black Santa wouldn’t have to follow through with the request since KKK outfits are not protected characteristics under accommodation laws, while sexual orientation is protected in Colorado.

Another notable moment saw Alito bringing up a scenario where a Jewish photographer might reject taking images for a client to use on, which is an online dating service targeted toward people seeking extramarital relationships.

The justices heard more than two hours of spirited arguments in Smith’s appeal seeking an exemption from a Colorado law that bars discrimination based on sexual orientation and other factors.

Lower courts ruled in favor of Colorado.

Smith, who runs a web design business called 303 Creative, contends that Colorado’s Anti-Discrimination Act violates the right of artists – including web designers – to free speech under the U.S.Constitution’s First Amendment by forcing them to express messages through their work that they oppose.

Smith said she believes marriage should be limited to opposite-sex couples, a view shared by many conservative Christians.She preemptively sued Colorado’s civil rights commission and other state officials in 2016 because she feared she would be punished for refusing to serve gay weddings.

While the conservative justices indicated support for Smith’s stance, the liberal justices leaned toward Colorado’s arguments.The court has a 6-3 conservative majority.

Alito also asked about an instance in which someone offered customizable speeches or wedding vows.

‘Can they be forced to write vows or speeches that espouse things they loath?’ the conservative justice asked.

Lorie Smith preemptively sued Colorado’s civil rights commission and other state officials in 2016 because she feared she would be punished for refusing to serve gay weddings.Pictured: A grab from Smith’s website

Smith’s lawyer Kristen Waggoner of the Alliance Defending Freedom accompanied her client to speak outside the Supreme Court after opening arguments on Monday, December 5

The liberal justices posed tough questions to Kristen Waggoner, the lawyer representing Smith.Justice Sonia Sotomayor said a ruling favoring Smith could allow a business like Smith’s to also decline to provide services if they objected to interracial marriages or disabled people getting married.

‘Where’s the line?’ Sotomayor asked.

Sotomayor said such a ruling would be the first time in the Supreme Court’s history allowing a business open to the general public to ‘refuse to serve a customer based on race, sex, religion or sexual orientation.’

Colorado Solicitor General Eric Olson said Smith is seeking a ‘license to discriminate.’ Olson said her arguments would not just let a business owner decline to provide services because of a sincerely held religious belief but also due to ‘all sorts of racist, sexist and bigoted views.’ Olson said the Colorado public accommodation law at issue targets the conduct of discriminatory sales by businesses like Smith’s.

‘The company can choose to sell websites that only feature biblical quotes describing marriage as only between a man and a woman, just like a Christmas store can choose to sell only Christmas-related items.A company just cannot refuse to serve gay couples, as it seeks to do here, just as a Christmas store cannot announce, ‘No Jews allowed,” Olson said.

Biden’s administration backed Colorado in the case. Deputy Solicitor General Brian Fletcher told the justices that even if they are sympathetic to Smith’s own situation, she was seeking a ‘very sweeping’ result that could allow businesses to reject customers on the unacceptable basis of race as well.

Colorado’s law bars businesses open to the public from denying goods or services to people because of race, gender, sexual orientation, religion and certain other characteristics, and from displaying a notice to that effect.

Conservative Justice Clarence Thomas pressed Olsen on what historical precedent there was for allowing speech to be directly or indirectly regulated by public accommodation laws, saying that ‘this is not a hotel, this is not a restaurant, this is not a riverboat or train.’

Public accommodations laws exist in many states, banning discrimination in areas such as housing, hotels, retail businesses, restaurants and educational institutions.

Waggoner depicted the case as a fight against government-compelled speech, describing her client as an artist making a custom creation rather than merely offering a service.Waggoner said Colorado law forces Smith ‘to create speech not simply sell it.’

Waggoner said that Smith ‘believes opposite-sex marriage honors scripture and same-sex marriage contradicts it. If the government can label this speech equivalent, it can do so for any speech, whether religious or political.Under Colorado’s theory, jurisdictions could force a Democrat publicist to write a Republican’s press release.’

The Supreme Court has become increasingly supportive of religious rights and related free speech claims in recent years even as it has backed LGBT rights in other cases.The court legalized gay marriage nationwide in a landmark 2015 decision and in 2020 expanded protections for LGBT workers under federal law.

Liberal Justice Elena Kagan questioned why a website designer who provided a heterosexual couple a standard wedding website with names, dates, pictures and hotel information could decline to provide the exact same site to a gay couple.

‘If I understand you, you’re saying, ‘Yes, she can refuse,’ because there’s ideology just in the fact that it’s Mike and Harry, and there’s a picture of these two guys together,’ Kagan told Waggoner.

The case follows the Supreme Court’s narrow 2018 ruling in favor of Jack Phillips, a Christian Denver-area baker who refused on religious grounds to make a wedding cake for a gay couple.The court in that case stopped short of creating a free speech exemption to anti-discrimination laws. Like Phillips, Smith is represented by the Alliance Defending Freedom, a conservative religious rights group.

Conservative Justice Amy Coney Barrett said Waggoner was on her ‘strongest ground when you’re talking about her sitting down and designing and coming up with the graphics to customize them for the couple.’ Barrett questioned whether the First Amendment would still protect Smith if she wanted to decline to provide a ‘plug-and-play’ website to a gay couple that an opposite-sex couple could buy.