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Supreme Court OKs LGBTQ Discrimination in Favor of Free Speech

Lorie Smith owns a graphic design business named 303 Creative LLC. She plans to offer customized services to create websites for upcoming weddings. Smith says her websites will be "expressive in nature" and designed to "communicate a particular message." Before Smith begins this service, she wants to ensure that her state of Colorado cannot force her to create wedding websites to "celebrate marriages that defy her beliefs.” She believes marriages may only be between a man and a woman. Smith would like to post on her website that "Wedding websites will be refused to gays and lesbians." Colorado’s public accommodations anti-discrimination law (CADA) prohibits businesses offering goods and services to the public from discriminating against protected classes, including denying service because of sexual orientation. Colorado law requires that if Smith sells her products to some, she must sell her products to all.

Justice Neil Gorsuch wrote the majority opinion. He asserts, "When a state public accommodations law and the Constitution collide, there can be no question which must prevail." The Court compared Smith's situation to speechwriters and artists who get to choose whether they create their work for someone. It is unclear whether Colorado's law would restrict these individuals. The Court concludes that Colorado requires Smith to either speak as the state demands or face sanctions for expressing her beliefs, violating her constitutional right to free speech. Even if Colorado finds Smith's opinions unworthy, the Court says it cannot require her to speak in a way that contradicts her "religious commitments."

Justice Sonia Sotomayor's dissent asserts that the First Amendment does not entitle someone to a special exemption from a public accommodation law that requires them to serve everyone on equal terms. Justice Sotomayor states that Colorado can restrict discriminatory conduct with "incidental burdens on speech." Here, Smith should offer her services without regard to the customers' protected characteristics. Smith can limit her offerings if the same limits apply to everyone. For example, if Smith wanted only to offer websites with biblical quotations describing marriage as between a man and a woman, she could do that. But she cannot exclude a class of people. Significantly, the Court's majority opinion does not limit its holding to LGBTQ individuals. There may be other attempts to exclude protected groups from public accommodations.