February 2, 2023

Civil rights groups say a court opinion that sides with Smith could tear a massive hole in the country’s anti-bias laws and potentially undermine protections for racial minorities and women and LGBTQ people. These proponents say the Supreme Court has repeatedly rejected claims that corporations have a First Amendment right to discriminate.

Smith’s position would mean that “architects could refuse to design homes for black families,” said David Cole, national legal director for the American Civil Liberties Union. “Bakeries may refuse to make custom birthday cakes for Muslim children.”

This case isn’t directly about religion, although it lurks in the background. In agreeing to hear Smith’s appeal, the judges confined their arguments to the constitutional guarantees of free speech and refused to assume their religious rights.

Smith’s challenge is a follow-up to a similar clash involving a Colorado baker who refused to bake a cake to celebrate a same-sex wedding. The Supreme Court sidestepped the key issues in that case in 2018, issuing a narrow ruling that the Colorado Civil Rights Commission had shown hostility toward religion while considering the Baker’s case.

Both lawsuits were filed by the Alliance Defending Freedom, a Christian legal advocacy group that has emerged as the nation’s largest force in courtrooms on behalf of religious rights. The group, which also helped draft and defend the Mississippi law that led to this year’s decision repealing the constitutional right to abortion, said it won 14 cases in the Supreme Court.

The case comes before a Supreme Court whose conservative majority has repeatedly strengthened religious freedom and in recent years has sided with football coaches, parents and churches in allegations of violations of their constitutional rights. In a July speech, conservative judge Samuel Alito lamented “growing hostility to religion” in American society.

The argument coincides with a push by Congress to protect same-sex marriage if the court reconsiders the 2015 ruling that enshrined it as a constitutional right. The Senate on Tuesday passed legislation requiring states to recognize marriage licenses issued in another jurisdiction, including protecting religious freedom, to meet Republican demands.

Smith started her own business a decade ago and has worked for both for-profit and non-profit organizations ever since. She says she wants to expand her work into weddings, something she says has been a passion since childhood, spending time in her mother’s boutique.

Under Colorado law, she can’t do that unless she’s willing to create websites for all weddings — including same-sex couples. The law would also ban her from posting an online message saying she will not create same-sex wedding sites because of her religious beliefs.

“What the state is saying is that it has the authority, which it doesn’t have, to compel an artist to create an individual expression that goes against the core of who they are,” Smith said.

Colorado officials claim the law governs discriminatory sales practices, not statements. The state says Smith is free to create whatever messages she wants — and could even require her websites to include a Bible quote describing marriage as strictly male-female — as long as she sells those products to anyone who wants them.

In court filings, Colorado Attorney General Philip Weiser said the law protects “equal access and dignity of customers” and follows a centuries-old legal tradition that businesses open to the public must serve all comers.

“Allowing a company to deny service based on who those customers are would break with that tradition and deny them full participation in the market,” argued Weiser, a Democrat.

The Biden administration, which supports the state, said in court filings the law “only incidentally burdens speech.”

Unlike the bakery case, which began with a dismissed same-sex couple, Smith sued without waiting to see if potential customers could file a civil rights lawsuit against her. She says she reached out to Alliance Defending Freedom at the suggestion of her pastor at the non-denominational evangelical Christian church she attends.

The broad nature of Smith’s challenge to free speech opens up the possibility of a watershed judgment — one that could raise a host of new questions about what types of corporations can claim exceptions to free speech and what other minority groups might be affected.

“I have no doubt that a majority of justices agree with Smith’s position,” said Kelsi Brown Corkran, director of the Supreme Court at the Georgetown University Law Center’s Institute for Constitutional Advocacy and Protection. “But there are really tough questions about the impact of the verdict on Smith.”

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