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Same-sex marriage and LGBTQ protections at center of another Supreme Court case

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WASHINGTON — For Lorie Smith, her trial is a crusade for free speech. For its opponents, it is an effort to weaken laws aimed at combating LGBTQ discrimination.

A conservative evangelical Christian who opposes same-sex marriage and runs a company in Colorado that designs websites, including for weddings, Smith sued the state because she would like to accept clients who plan opposite-sex weddings but rejects claims made by same-sex couples wanting the same benefit.

Smith was not disciplined for refusing to design such a website, but sued on the assumption that she might be.

Her case has reached the US Supreme Court, where she is asking judges to rule in a case heard Monday that she cannot be punished under Colorado’s anti-discrimination law for refusing to design websites for same-sex marriages. Smith argues that as a creative professional, she has a free speech right under the Constitution’s First Amendment to refuse to undertake work that conflicts with her own views.

Civil rights groups say Smith is asking the conservative-majority court for a “license to discriminate” that would seriously undermine public accommodation laws that require companies to serve all customers.

The case is the latest example of the ongoing dispute over the 2015 Supreme Court ruling that legalized same-sex marriage, which conservative Christians continue to vociferously oppose even as Congress moves to enact legislation with backing. bipartisanship that strengthens protections for same-sex married people. couples.

Smith, whose business is called 303 Creative, said in an interview that she’s always been drawn to creative endeavours, but also strongly believes that “marriage is between a man and a woman – and that unity is important.

Represented by the conservative Christian legal group Alliance Defending Freedom, Smith sued the state’s civil rights commission in 2016, fearing she could be punished under its anti-discrimination law that prohibits discrimination based on orientation. sex in public places. Lower courts ruled against Smith, prompting him to appeal to the Supreme Court.

Smith says that due to the threat of law enforcement, she has turned down all wedding website requests, although she insists she accepts commissions from clients ‘from all walks of life’ , including LGBTQ people.

“The court shouldn’t put anyone in the position I was put in: forcing someone to create custom artwork that goes against who they are or incurring punishment,” said Smith.

The case gives the Supreme Court, which now has a 6-3 conservative majority, a second bite on a legal issue it considered but never resolved when it ruled in a similar case in 2018 in favor of a Christian baker, also from Colorado, who refused to bake a wedding cake for a gay couple. The court then ruled that the baker, Jack Phillips, did not receive a fair hearing before the Colorado Civil Rights Commission because there was evidence of anti-religious bias.

The 2018 decision left the larger issue currently at issue in the Smith case unsettled. If the court rules in favor of Smith, some business owners would effectively be exempt from elements of 29 state laws that protect LGBTQ rights in public accommodations in one form or another. The remaining 21 states do not have laws explicitly protecting LGBTQ rights in public accommodations, although some local municipalities do.

“Right to discriminate”

Civil rights groups say a move along these lines would undermine the entire purpose of anti-discrimination laws.

“If the court grants an exemption for what is considered artistic and creative, the court has blown a big hole in our anti-discrimination principles,” said Louise Melling, an attorney at the American Civil Liberties Union. Such a decision could have repercussions on other areas such as health care, education and employment, she added.

A brief filed by public accommodations law experts said Colorado law regulates conduct, not speech, and that a ruling for Smith “would inflict significant and irreparable damage to the very architecture of the law.” anti-discrimination”. Smith has accepted commissions on a wide range of issues, including a law firm that handles divorce and marijuana issues, and no one would assume she endorses posts from those clients, academics say .

State officials said in court documents that they never investigated Smith and had no evidence that anyone ever asked him to start a same-sex marriage website.

Colorado Solicitor General Eric Olson wrote that there is a long tradition of public housing laws protecting everyone’s ability to obtain goods and services.

“Allowing a company to refuse service based on the identity of those customers would break with that tradition and deprive them of full market participation,” he said.

Alliance Defending Freedom, which also represented Phillips, has had success arguing religious rights cases in the Supreme Court in recent years. The court ruled on the Baker case ahead of the retirement of Justice Anthony Kennedy, who voted for LGBTQ rights in key cases. Now, after three appointments made by former President Donald Trump, the court has six conservative and three liberal justices.

Kennedy was in the majority when the court legalized same-sex marriage by a 5-4 vote. In another major victory for LGBTQ rights, the Supreme Court in 2020, to the surprise of many court observers, ruled that a Federal law prohibiting sex discrimination in employment protects LGBTQ employees.

A year later, the court ruled in favor of a Catholic Church-affiliated agency that the city of Philadelphia had barred from its foster care program because of the church’s opposition to same-sex marriage. In other cases, in recent years, the conservative majority has always supported religious rights.

In light of recent rulings, Smith likely has reason to be optimistic that she will receive a sympathetic hearing from the conservative judges on Monday.

“I hope the court will take a measure to protect everyone’s right to free expression,” she said.

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