The case may settle a question left open in 2018: how to reconcile claims of religious liberty with laws barring discrimination based on sexual orientation.
WASHINGTON — The Supreme Court agreed on Tuesday to hear an appeal from a Colorado web designer who objects to providing services for same-sex marriages, returning the justices to a battleground in the culture wars pitting claims of religious freedom against laws prohibiting discrimination on the basis of sexual orientation.
The court last considered the clash in 2018, when a similar dispute between a Colorado baker and a gay couple failed to yield a definitive ruling.
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 stay silent violates the free speech clause of the First Amendment.”
The court will hear the case, 303 Creative LLC v. Elenis, No. 21-476, in its next term, which starts in October. It concerns Lorie Smith, who owns a website design company that says it serves gay customers but intends to limit its wedding-related services to celebrations of heterosexual unions. Ms. Smith has said she intends to post a message saying the company’s policy was a product of her religious convictions.
A Colorado law forbids discrimination against gay people by businesses open to the public as well as statements announcing such discrimination. Ms. Smith, who has not begun the wedding business or posted the proposed statement for fear of violating the law, sued to challenge it, saying it violated her rights to free speech and the free exercise of religion.
A divided three-judge panel of the U.S. Court of Appeals for the Tenth Circuit, in Denver, applied the most demanding form of judicial scrutiny to the law but upheld it.
“Colorado has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace,” Judge Mary Beck Briscoe wrote for the majority, adding that the law is narrowly tailored to address that interest.
“To be sure,” Judge Briscoe wrote, “L.G.B.T. consumers may be able to obtain wedding-website design services from other businesses; yet, L.G.B.T. consumers will never be able to obtain wedding-related services of the same quality and nature as those that appellants offer.”
Judge Briscoe added that “Colorado may prohibit speech that promotes unlawful activity, including unlawful discrimination.”
In dissent, Chief Judge Timothy M. Tymkovich, citing George Orwell, said “the majority takes the remarkable — and novel — stance that the government may force Ms. Smith to produce messages that violate her conscience.”
“It seems we have moved from ‘live and let live,’” he wrote, “to ‘you can’t say that.’”
Lower courts have generally sided with gay and lesbian couples who were refused service, ruling that they are entitled to equal treatment, at least in parts of the country with laws forbidding discrimination based on sexual orientation.
The owners of businesses challenging those laws have argued that the government should not force them to choose between the requirements of their faiths and their livelihoods, citing constitutional protections for free speech and religious liberty.
