Supreme Court limits LGBTQ protections in dispute over services for same-sex weddings

A Christian web designer has a First Amendment right to refuse to create websites for same-sex weddings, the Supreme Court ruled Friday in a decision that dilutes legal protections for LGBTQ people.

By a 6-3 vote, the justices sided with Lorie Smith, an evangelical Christian and Colorado web designer who opposes same-sex marriage. Colorado law bars businesses from discriminating on the basis of sexual orientation, but Smith argued that the free speech guarantee of the federal Constitution entitles her to an exemption from that law.

The high court’s conservatives agreed. They ruled that Smith has a right to offer design services for opposite-sex weddings while refusing those services for same-sex weddings.

“Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance,” Justice Neil Gorsuch wrote in the majority opinion.

Gorsuch also declared that those opposed to same-sex marriage were entitled to “tolerance” from the broader community.

“The opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong,” he continued. “Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider ‘unattractive,’ ‘misguided, or even hurtful.’ But tolerance, not coercion, is our Nation’s answer.”

The court’s three liberal justices dissented. “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class,” Justice Sonia Sotomayor wrote in the dissent.

Sotomayor said the court’s ruling opens the door for a wide variety of businesses to discriminate against prospective customers. She read portions of her dissent from the bench — an unusual move that signaled she felt especially strongly. It was the second day in a row that Sotomayor dissented from the bench. (On Thursday, she read long portions of her dissent in the court’s decision ending affirmative action.)

Gorsuch, who sits next to Sotomayor on the bench, turned toward her and listened as she called his ruling "heartbreaking" and "a grave error."

"This is wrong, profoundly wrong," Sotomayor said.

The court’s conservative majority largely sidestepped a sensitive question in the case: how it could vindicate Smith’s right to decline to work on same-sex weddings while not taking the provocative step of disturbing half-century-old legal precedents rejecting similar First Amendment arguments from business owners who sought to avoid serving Black customers.

The ruling Friday in 303 Creative v. Elenis marks an apparent end to a remarkable series of Supreme Court victories for gay and transgender Americans over the past two decades, including a 2003 decision overturning anti-sodomy laws, a 2013 ruling mandating federal recognition of same-sex marriage by overturning a key provision of the Defense of Marriage Act, a landmark 2015 decision requiring states to permit same-sex marriages and a surprise 2020 ruling that existing protections against sex discrimination in employment cover discrimination based on sexual orientation or for being transgender.

While LGBTQ advocates insisted that Smith was violating Colorado law by discriminating against same-sex couples, her attorneys said she routinely provides services to LGBTQ people without regard to their sexual orientation but simply does not wish to endorse same-sex weddings at odds with her personal beliefs.

During oral arguments on the case in December, liberal justices said the speech emanating from a wedding website is that of the couple, not the designer. But Smith’s attorney insisted that forcing her to tout a same-sex wedding was akin to forcing a ghost writer to take on a project for a client whose views she did not share.

Fears in the LGBTQ community about legal setbacks have increased since the Supreme Court issued its decision a year ago overturning the nearly half-century-old federal right to abortion.

Justice Clarence Thomas’ concurrence accompanying that ruling said he favored revisiting the 2015 decision finding a federal constitutional right to same-sex marriage. However, many legal analysts predicted the conservative justices who now outnumber their liberal colleagues, 6-3, seem more likely to cut back LGBTQ rights incrementally than to overturn a widely embraced decision on same-sex marriage rights.

Despite those fears, the current batch of Republican-appointed justices have hardly been uniformly hostile to gay rights. Just three years ago, Gorsuch stunned many court watchers when he wrote the majority opinion in the case that extended employment-discrimination protections to gay and transgender people. He was joined by Chief Justice John Roberts, an appointee of President George W. Bush, as well as the four Democratic-appointed justices who were on the court at the time.

Gorsuch’s opinion on Friday did not mention the 2020 case, which did not involve a free-speech claim.