The case involves Lorie Smith, who owns a design firm that says it serves gay clients but plans to limit a proposed wedding-related service to celebrations of heterosexual unions. She argued that requiring her to provide these services to gay and lesbian couples violates her right to free speech. “If a gay-identifying client asked her to design graphics for his animal rescue shelter or promote an organization serving children with disabilities, Smith would be happy to do so,” Ms. Smith’s lawyers told the judges in a brief . “But Smith will deny any request — no matter who makes it — to create content that contradicts Bible truths, denigrates or demeans anyone, promotes atheism or gambling, advocates taking away unborn life, incites violence or promotes an idea of marriage that is not just the union of a man and a woman.” A Colorado law prohibits discrimination based on sexual orientation by businesses open to the public, as well as statements announcing such discrimination. Mrs. Smith, who has not started the marriage business or published such a statement for fear of breaking the law, sued to challenge it. Philip J. Weiser, Colorado’s attorney general, told the justices briefly that there was nothing concrete for the Supreme Court to decide. “The record contains no evidence,” he wrote, “that anyone has asked the company to create a same-sex marriage website. that Colorado has threatened enforcement; or that any future matrimonial site will carry a message that would be attributed to the company.” In any event, he wrote, the Colorado law was constitutional. A different decision, he said, would have unacceptable consequences. “A business could, based on its stated beliefs, refuse to bake for Catholic baptisms because it is pro-choice, photograph black family gatherings because it opposes racial equality, or create flowers for events celebrating women’s business achievements because believes only men should work outside the home,” Mr. Weiser wrote in another brief. Lower courts have generally sided with gay and lesbian couples denied service by bakeries, florists and others, ruling that potential customers have a right to equal treatment, at least in parts of the country with laws that prohibit discrimination based on sexual orientation. Business owners challenging these laws argued that the government should not force them to choose between the demands of their faith and their livelihoods. Opponents say businesses that are open to the public must provide equal treatment to potential customers. The case before the judges, 303 Creative LLC v. Eleni, No. 21-476, is a challenge to free speech that only incidentally concerns religion. Ms. Smith’s lawyers had also asked the Supreme Court to decide whether the Colorado law violated her right to free exercise of religion and to consider whether to overturn a landmark 1990 precedent, Employment Division v. Smith. In that case, the Supreme Court held that laws that are neutral and generally applicable could not be challenged on the grounds that they violated the First Amendment’s protection of the free exercise of religion. That ruling, stemming from a case involving the use of peyote in Native American religious ceremonies, is unpopular among conservative Christians, who say it does not provide enough protection for religion, and some of the justices. Last year, the three most conservative members of the court – Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch – said it’s time to overturn the 1990 decision. In the new case from Colorado, however, the court limited its review to the question of whether the Colorado law violates the First Amendment’s free speech protections. The precise question the justices agreed to decide in the new case is “whether applying a public accommodation law to compel an artist to speak or remain silent violates the First Amendment’s free speech clause.”
