The Washington PostDemocracy Dies in Darkness

Opinion Don’t like anti-discrimination laws? The Supreme Court wants to hear your case.

(Jabin Botsford/The Washington Post)
5 min

This week, the Supreme Court announced that it will hear the case of a website designer seeking a right to discriminate against gay couples because of her religious beliefs, despite the fact that such discrimination is against the law in her state. That the court is taking the case at all is a strong hint that it could become a vehicle to take the law where it hasn’t been before.

Depending on how far the justices decide to go — and some members of the conservative supermajority would like to go very far — the consequences could be extraordinarily disturbing.

If the justices were uncomfortable with this case, they could easily have turned it away by saying the plaintiff, a woman named Lorie Smith who has a one-person Web design business called 303 Creative, doesn’t have standing to sue.

Smith hasn’t been punished by the state of Colorado for refusing to make a website for a gay wedding. And she hasn’t actually refused to make a website for a gay wedding. This is because she doesn’t actually design websites for weddings.

But she says she intends to at some point in the future. When she does, she doesn’t want to have to make them for same-sex couples, because as she says, “Doing that would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage.”

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Smith lost her case in lower courts, which held that despite her religious beliefs, Colorado law prohibits discrimination against people on the basis of sexual orientation. Just as someone couldn’t say religious beliefs forbade them from serving Black people at their restaurant, she can’t discriminate against gay couples in her business.

If this sounds familiar, it’s because the Supreme Court decided a similar Colorado case in 2018, called Masterpiece Cakeshop, brought by a baker who didn’t want to make wedding cakes for gay couples. But in that case, the court made an extremely narrow decision, ruling not that people have a right to discriminate even if state law says they don’t, but that the Colorado Civil Rights Commission demonstrated a religious animus toward the baker.

In the end, they left the underlying issue undecided. “The outcome of cases like this in other circumstances must await further elaboration,” wrote Justice Anthony M. Kennedy in the decision.

But the court that decided Masterpiece Cakeshop was very different from the court of today. Kennedy was replaced by Brett M. Kavanaugh, and Ruth Bader Ginsburg by Amy Coney Barrett. Could there be five votes to rule in favor of Lorie Smith? And if so, how far would the ruling reach? It’s too soon to say.

But here’s what we do know. Despite issuing a couple of rulings like Masterpiece Cakeshop that intentionally limited their effects, in recent years the court has been steadily widening the privileges of religious plaintiffs — almost always conservative Christians.

The justices have done this by attacking the First Amendment’s separation of church and state in two directions. First, they’ve whittled away at the establishment clause, which prohibits the state from directly supporting particular religions, by ruling in favor of prayers at government meetings, displays of Christian imagery on government property, and government funding of religious schools. Second, justices have expanded the reach of the free-exercise clause, ruling that religious beliefs should overwhelm other state interests when religious people would prefer not to be bound by laws they don’t like, such as the Affordable Care Act’s contraception mandate.

In taking this case, the court said it would decide whether applying Colorado’s non-discrimination law “to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”

In other words, the court will decide whether Smith can refuse to design a website for gay customers on the grounds that requiring her to do so would violate her free-speech rights, as an artist. But that raises its own issues. Where is the line that separates an “artist” from someone who isn’t an artist? Is a landscaper who spruces up a gay couple’s yard an artist? How about the carpenter who builds a nursery for their child? Could they also turn down gay customers?

Smith is being represented by the right-wing Alliance Defending Freedom. As Slate’s Mark Joseph Stern notes, “If ADF prevails, businesses may secure a right to discriminate against anyone as long as their work involves speech.” This could apply not just to same-sex couples but also to African Americans or Jews or Muslims or — dare I say it — Christians.

But it all depends on just how sweeping a ruling the court’s majority decides to issue. The prospect of creative businesses announcing their intention to discriminate against people with whom the conservative justices actually feel an affinity might lead them to rule narrowly.

No matter what happens, it’s a good bet that the court will keep taking these kinds of cases that afford opportunities to carve out new rights and privileges for religious people. Even if the justices do it just a little at a time, they keep moving in the same direction.