The atmosphere at the gates of the United States Supreme Court this Monday was that of big cases. Conservative organizations and LGTBIQ+ activists demonstrated outside while inside a case was discussed in which religious beliefs and the rights of homosexual couples conflict. The Supreme Court, with a clear conservative majority, seems to be inclined to support the Colorado web designer who refuses to provide her services for gay weddings despite the fact that the law of that State rejects discrimination based on sexual orientation. However, it will be necessary to wait until June to find out where the diffuse border between the constitutionally protected freedom of expression and the illegal discrimination of minorities is drawn.
The court has examined an appeal from 303 Creative, the company of Lorie Smith, a 38-year-old evangelical Christian web designer who only believes in marriage as a union of a man and a woman. Smith wants to deny her services for homosexual weddings and argues that no one can force her to do so by virtue of the freedom of expression enshrined in the First Amendment of the Constitution.
The case (303 Creative LLC v. Elenis) It has become an exponent of the culture wars that the Supreme Court with a conservative majority is willing to wage in its turn to the right, despite the fact that it is somewhat prefabricated. Smith does not yet have a wedding website service and has not been commissioned by any gay couple. But she says she wants to launch the service and issue a warning outright refusing to serve clients for gay weddings, something Colorado law prohibits.
All parties have come to admit during the hearing on Monday that no one can force the designer to create a web page that transmits messages in favor of gay marriage. But Smith refuses to provide the service even though she doesn’t have to include those kinds of messages; even if the design that she commissions is the same as one that she has already done for a heterosexual couple or if it includes only data such as the name of the spouses, place of celebration, accommodation options, the wedding list and other logistical details .
The limit of discrimination
Progressive judges have cornered Smith’s lawyer, Kristen Wagoner, who has made mistakes and contradictions and has not been able to explain where the line is set on whether to discriminate for free speech based on personal beliefs. Judge Sonia Sotomayor has been the most incisive. If Smith is allowed to deny him services because he doesn’t believe in gay marriage, “what’s the line? What about people who don’t believe in interracial marriage or who don’t believe that people with disabilities should get married? Where’s the line? I choose to serve whoever I want. If I disagree with their personal characteristics, such as race or disability, I can choose not to sell to those people.” has said.
“In the context of race”, Wagoner replied, “It is highly unlikely that anyone would cater to black Americans on other issues, but only refuse to do so in an interracial marriage context.” “Well, it’s not impossible,” Judge Elena Kagan, also a progressive, has replied.
Smith’s lawyer has tried to argue that it is not about the clients but about the message. That is to say, the designer admits homosexual clients for other orders that do not have to do with marriage. The question is whether the mere fact of having to accept the hypothetical commission to design a web page for a gay wedding (even if the design does not have any ideological charge), somehow obliges her to spread an implicit message in favor of equal marriage . “The same expression can mean different things, like a black sculptor carving a custom cross to celebrate a Catholic baptism, but not an Aryan church rally,” his lawyer said.
The third progressive judge of the nine members of the court, Ketanji Brown Jackson, has taken the examples of wedding web designs proposed by Smith and has asked her lawyer: “What is the message [en contra de sus creencias] of ‘save the date’. “It is an invitation to celebrate a marriage,” the lawyer replied. “But you are not inviting to the wedding. They are the boyfriends. How does it become your message?” Jackson replied. “With the wedding announcement itself that she believes to be false [si la pareja no es un hombre y una mujer]”, the lawyer said later.
The progressive judges have stressed that this concept of implicit message has never been admitted and have warned of the risk of opening that spigot. In addition, they have indicated that it is not the web designer who invites and transmits a message, but rather the authors of the message are considered to be the contracting parties.
The session has been spent tracing the border between goods and services that include a message or speech (and therefore protected by freedom of expression) and those that do not. Thus, a speechwriter cannot be forced to accept a commission to argue against her convictions. On the other hand, a company that rents chairs for wedding banquets cannot refuse to do so for a gay marriage. The design of the web page is somewhere in between.
Just as Smith’s lawyer has listed the photograph as one of the examples covered by free speech, Justice Jackson, an African American, has listed another example: can a photographer in a shopping mall be allowed to refuse black children to take a picture with a white Santa Claus, claiming that he wants to recreate images from another era? And she can be allowed to put up a sign that says “white children only”? “That would be a borderline case,” said Smith’s lawyer.
Alito’s jokes
Conservative Justice Samuel Alito has since counterattacked with another example: Can a black Santa on the other side of the mall be forced to take a photo with a kid in a Ku Klux Klan outfit? Colorado attorney Eric Olson, who is rejecting the designer’s “license to discriminate,” has countered that equality laws do not protect Ku Klux Klan costumes. And one of the progressive judges has told the judge that in any case it would not matter if the disguised child was white or a boy, to which Alito has replied, in what seemed to be an ironic joke and that has become viral: ” You see a lot of black kids in Ku Klux Klan costumes, all the time.” Judge Alito has also made another dubious joke about whether Judge Elena Kagan knows Ashley Madison, the dating app that promotes infidelity. She was questioning whether a Jewish photographer could refuse to take pictures of another Jew for that website.
On his turn, the Colorado attorney has warned of the risk of agreeing with the designer: “Granting that license to discriminate would empower all businesses that offer what they consider to be expressive services, from architects to photographers to consultants, to deny service to clients based on their disability, sexual orientation, religion or race.”
Olson has given a very graphic example to show that the designer is not being forced to express a message in which she does not believe, but that it is about preventing discrimination: “The company can choose to sell websites that only present Biblical quotes that they describe marriage as being between a man and a woman, much like a Christmas store might choose to sell only Christmas-related items. [Pero] the company cannot refuse to serve gay couples, as it intends to do here, any more than the Christmas store can advertise that Jews are not allowed.” Alito has told him that he is not going to have many gay clients who want to hire a design with that message, to which Olson has replied that he could also lose many heterosexual couples who do not share that message.
“The free speech exemption that the company is seeking in this case is broad, because it would apply not only to sincerely held religious beliefs, like those of the company and its owner, but also to all kinds of racist, sexist and bigoted views. This rule would allow another web design company to say it doesn’t cater to interracial couples, an ad agency to reject businesses run by women, and a technology consultancy to refuse to cater to 303 Creative itself for disagreeing with the owner’s religion. ”, Olson continued.
Conservative Judge Amy Coney Barrett embarrassed the Colorado lawyer by asking if an LGBT organization that functions as a public establishment and publishes a website with gay marriage ads to celebrate gay marriage could reject ads from heterosexual couples. Olson ended by saying that she should admit them.
The Supreme Court supported a Colorado pastry chef three years ago who refused to make a wedding cake for a gay couple, although it did not go into the merits of the matter and part of his arguments were against discrimination. This case has similarities and differences with that one, but there is a coincidence that its outcome may be more transcendent, by establishing the doctrine on the extent to which religious and other beliefs can rely on freedom of expression to justify discriminatory actions.
The conservative judges seemed to show their willingness to endorse the web designer’s theses, arguing that she does not reject specific people but rather a message that she does not share. Conservatives tried to draw boundaries on this discrimination based on sexual orientation and discrimination based on race, to which Judge Jackson declared herself “perplexed”, since she understands that there is no difference and that in the past interracial marriages were also outlawed from religious premises.
Judge Sotomayor asked the Colorado lawyer a question that was somewhat rhetorical, but served to sum up the case: “This would be the first time in history that the Court [Supremo] Would you say that a commercial business open to the public, serving the public, could refuse to serve a customer based on race, gender, religion, or sexual orientation, correct?” “Yes,” Olson said.
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