{"id":34254,"date":"2023-06-30T02:29:00","date_gmt":"2023-06-30T02:29:00","guid":{"rendered":"https:\/\/www.lifeandnews.com\/articles\/?p=34254"},"modified":"2023-07-02T08:26:24","modified_gmt":"2023-07-02T08:26:24","slug":"a-business-can-decline-service-based-on-its-beliefs-supreme-court-rules-but-what-will-this-look-like-in-practice","status":"publish","type":"post","link":"https:\/\/www.lifeandnews.com\/articles\/a-business-can-decline-service-based-on-its-beliefs-supreme-court-rules-but-what-will-this-look-like-in-practice\/","title":{"rendered":"A business can decline service based on its beliefs, Supreme Court rules \u2013 but what will this look like in\u00a0practice?"},"content":{"rendered":"\n

Charles J. Russo<\/a>, University of Dayton<\/a><\/em><\/p>\n\n\n\n

At issue in one of this year\u2019s most highly anticipated Supreme Court cases, 303 Creative v. Elenis<\/a>, was what happens when someone\u2019s free speech or beliefs conflict with others\u2019 rights. Specifically, 303 Creative addressed whether a Colorado anti-discrimination law can require a designer who believes marriage is only between a man and a woman to create a wedding website for a same-sex couple.<\/p>\n\n\n\n

Two years ago, the 10th Circuit Court of Appeals affirmed that the answer was \u201cyes<\/a>.\u201d<\/p>\n\n\n\n

But on June 30, 2023, a bitterly divided Supreme Court reversed that judgment<\/a>, holding 6-3 that the free speech clause of the First Amendment<\/a> prohibited state officials from requiring the designer to create a website that communicates a message with which she disagrees.<\/p>\n\n\n\n

As a professor of law<\/a> who pays particular attention to First Amendment issues involving freedom of religion and speech, I see the case highlighting tension between two competing fundamental interests \u2013 ones that clash routinely in 21st century America.<\/p>\n\n\n\n

Compelled speech?<\/h2>\n\n\n\n

The underlying dispute involves graphic artist Lorie Smith, the founder and owner of a studio called 303 Creative<\/a>. According to court documents, Smith will work with clients of any sexual orientation. However, she will not create content that goes against her religious beliefs, such as \u201cthat marriage is a union between one man and one woman.\u201d<\/p>\n\n\n\n

Conflict arose when Smith challenged Colorado\u2019s Anti-Discrimination Act<\/a>, under which it is discriminatory and illegal to refuse services to someone based on \u201cdisability, race, creed, color, sex, sexual orientation, marital status, national origin or ancestry.\u201d<\/p>\n\n\n\n

In 2016, Smith unsuccessfully sued the members of the state\u2019s Civil Rights Commission and Colorado\u2019s attorney general<\/a>. She and her attorneys argued that creating a website counts as an act of speech, and so being required to prepare a same-sex wedding website would violate her First Amendment rights: The law would force her to speak, legally referred to as \u201ccompelled speech.\u201d<\/p>\n\n\n\n

Smith and her attorneys also claimed that requiring her to create a website would violate her First Amendment right to the free exercise of religion<\/a>.<\/p>\n\n\n\n

The federal trial court<\/a> in Colorado rejected Smith\u2019s attempt to block enforcement of the anti-discrimination law in 2019. When she appealed, a split 10th Circuit affirmed<\/a> that Smith could not refuse to create websites for same-sex weddings, even if it would have gone against her beliefs. Protecting diverse viewpoints, in the court\u2019s opinion<\/a>, was a \u201cgood in and of itself,\u201d but combating discrimination \u201cis, like individual autonomy, \u2018essential\u2019 to our democratic ideals.\u201d<\/p>\n\n\n\n

In a lengthy dissent<\/a>, the chief judge of the 10th Circuit focused on compelled speech. He criticized the panel for taking \u201cthe remarkable \u2013 and novel \u2013 stance that the government may force Ms. Smith to produce messages that violate her conscience.\u201d<\/p>\n\n\n\n

SCOTUS speaks<\/h2>\n\n\n\n

The Supreme Court agreed to hear Smith\u2019s case but limited the issue to free speech, sidestepping the dispute over the free exercise of religion. The question before the court<\/a> was \u201cwhether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.\u201d<\/p>\n\n\n\n

\"A<\/a>
Lorie Smith, center in pink, walks out of the Supreme Court on Dec. 5, 2022, after the high court heard oral arguments in her case. Kent Nishimura\/Los Angeles Times via Getty Images<\/a><\/figcaption><\/figure>\n\n\n\n

Writing for the majority, Justice Neil Gorsuch noted that \u201cFirst Amendment protections belong to all, not just to speakers whose motives the government finds worthy.\u201d<\/p>\n\n\n\n

Gorsuch reviewed the Supreme Court\u2019s cases protecting the rights of individuals not to express themselves. In 1943\u2019s West Virginia Board of Education v. Barnette<\/a>, for example, the court declared that public officials could not compel students who were Jehovah\u2019s Witnesses to salute the flag, because doing so violated their religious beliefs.<\/p>\n\n\n\n

While noting the \u201cvital role public accommodations laws play in realizing the civil rights of all Americans,\u201d Gorsuch reasoned<\/a> that Colorado could not \u201cforce an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.\u201d<\/p>\n\n\n\n

Further, Gorsuch harshly criticized the dissenting justices\u2019 argument that Colorado\u2019s law focused on business owners\u2019 conduct, not speech, contending that the dissent sidesteps a key question: whether a state can \u201cforce someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?\u201d<\/p>\n\n\n\n

Justice Sonia Sotomayor, whose dissent was joined by Justice Elena Kagan and Justice Ketanji Brown Jackson<\/a>, lamented the majority\u2019s decision as a time when there is \u201cbacklash to the movement for liberty and equality for gender and sexual minorities.\u201d<\/p>\n\n\n\n

Sotomayor then argued that under Colorado\u2019s anti-discrimination law, Smith\u2019s \u201cfreedom of speech is not abridged<\/a> in any meaningful sense, factual or legal.\u201d If Smith wants to \u201cadvocate the idea that same-sex marriage betrays God\u2019s laws,\u201d Sotomayor made it clear that she can.<\/p>\n\n\n\n

Sotomayor went on to decry the ruling for symbolically \u201cmark(ing) gays and lesbians for second-class status.\u201d Denying services to same-sex couples \u201creminds LGBT people of a painful feeling that they know all too well,\u201d she wrote. \u201cThere are some public places where they can be themselves, and some where they cannot.\u201d<\/p>\n\n\n\n

\"Half<\/a>
Religious leaders and Colorado Attorney General Phil Weiser hold a press conference in Denver following the Supreme Court\u2019s decision in 303 Creative LLC v. Elenis. Hyoung Chang\/The Denver Post via Getty Images<\/a><\/figcaption><\/figure>\n\n\n\n

Questions ahead<\/h2>\n\n\n\n

To see how 303 Creative\u2019s impact plays out, it is worth closely watching the parts of the U.S. with anti-discrimination statutes in place. As Justice Gorsuch noted, about half of all states have laws like Colorado\u2019s that \u201cexpressly prohibit discrimination<\/a> based on sexual orientation.\u201d More specifically, 22 states, plus the Virgin Islands and Washington, D.C.<\/a>, offer various forms of protections for LGBTQ+ individuals \u2013 including retail stories, restaurants, parks, hotels, doctors\u2019 offices and banks.<\/p>\n\n\n\n

I believe 303 Creative presents a challenge for society to come to grips with the tension between two fundamental interests.<\/p>\n\n\n\n

One is the Supreme Court\u2019s affirmation of Smith\u2019s key argument: that requiring her to prepare websites that go against her religious beliefs would violate her First Amendment right to freedom of speech.<\/p>\n\n\n\n

The other is the interest of same-sex couples in hiring the services they wish \u2013 and simply to be treated equally in the eyes of the law, on par with any other potential customers.<\/p>\n\n\n\n

Ensuring both freedom of speech and civil rights requires good-faith efforts at respect \u2013 and respect is a two-way street. However, exactly what this looks like will likely be the cause of more litigation to come.<\/p>\n\n\n\n

Charles J. Russo<\/a>, Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law, University of Dayton<\/a><\/em><\/p>\n\n\n\n

This article is republished from The Conversation<\/a> under a Creative Commons license. Read the original article<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Charles J. Russo, University of Dayton At issue in one of this year\u2019s most highly anticipated Supreme Court cases, 303 Creative v. Elenis, was what happens when someone\u2019s free speech or beliefs conflict with others\u2019 rights. Specifically, 303 Creative addressed whether a Colorado anti-discrimination law can require a designer who believes marriage is only between […]<\/p>\n","protected":false},"author":44,"featured_media":34255,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[5,4],"tags":[7420,2810,6661,2254,1614,5954,14312,6610,2029,1666],"_links":{"self":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/34254"}],"collection":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/users\/44"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/comments?post=34254"}],"version-history":[{"count":2,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/34254\/revisions"}],"predecessor-version":[{"id":34347,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/34254\/revisions\/34347"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media\/34255"}],"wp:attachment":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media?parent=34254"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/categories?post=34254"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/tags?post=34254"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}