DELMARVA – The Supreme Court of the United States (SCOTUS) is considering a case involving questions of discrimination and free speech.
303 Creative v. Elenis
Lorie Smith is an artist who owns her own design studio, 303 Creative, in Colorado. She began her business, specializing in website design, in 2012. Smith says she never intended to serve same sex couples seeking her services for their weddings.
However, Colorado state law prohibits discrimination based on sexual orientation by businesses open to the public. In 2016, Smith preemptively sued the Colorado Civil Rights Commission.
“She didn’t want to have to design messages for same sex couples who wanted to marry. Her arguments were based both on religious objections, and free speech reasons, for which the court only took the latter,” said constitutional scholar and professor of political science at Delaware State University, Dr. Samuel Hoff.
Smith’s case has made its way through some of the nation’s highest courts, and is now sitting before the highest. Monday, SCOTUS Justices heard oral arguments on the case.
Making Versus Messaging
The case comes on the heels of a 2018 SCOTUS ruling over a Colorado-based baker who refused to make a wedding cake for a same sex couple. While the cases deal with similar questions, Dr. Hoff says there are notable differences.
“The couple had actually objected to that, and brought suit against [Jack Phillips]. That was one difference,” said Dr. Hoff. “Another difference is that the court narrowly ruled on the religious question, saying one of the members of the Colorado Civil Rights Commission made some anti-religious comments.”
However, the ruling did not clear up the broader issue of whether folks could deny services to same sex couples, says Dr. Hoff. He says that seems to be the implication in Smith’s case, now. Plus, the Justices must weigh another issue:
“The question is, what is speech as opposed to other things? It’s interesting that experts have made a difference between baking a cake versus designing something where you have to use a message,” said Dr. Hoff. “I think the majority of the court is going to say you can’t really force someone to speak if they don’t want to speak in a way that they object to.”
Waiting and Watching
Dr. Hoff predicts that come July, SCOTUS Justices will narrowly side with Smith in this case.
“The opponents would say that’s blatant discrimination if you’re not allowing folks to do that. On the other hand, the majority of the justices seem to say it’s different from simply buying or selling something,” said Dr. Hoff. “The only question, in my view, is where is the Chief [Justice] going to fall on this case? It’s either going to be five to four or six to three on behalf of the 303 Creative Company.”
If that ruling does come, Dr. Hoff says it could have major ramifications; potentially even giving some business owners a “license to discriminate”.
“This, really, would open things up to other issues of potential discrimination,” said Dr. Hoff. “It’s based on a narrow focus. But, I think the ramifications of it, I think, are huge, and certainly bode negatively for the folks who are wanting to protect [LGBTQ+] rights.”
