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Opinion The Supreme Court keeps coddling the religious right. It shouldn’t.

Lorie Smith, owner of 303 Creative, speaks to supporters outside the Supreme Court on Monday. (Anna Moneymaker/Getty Images)

In its ongoing project to widen the privileges accorded to religious people — especially conservative Christians — the Supreme Court’s conservative majority is poised to undermine a critical distinction: the one between rules we obey in our personal lives and how that changes when we enter the commercial marketplace.

That was the implication of the oral argument at the Supreme Court on Monday in 303 Creative LLC v. Elenis. This case is about whether a website designer in Colorado can refuse to make sites for same-sex weddings, despite a state law that protects people from discrimination in public accommodations (i.e., businesses open to the public) by virtue of race, religion, sex, disability and sexual orientation, among other things.

The case was brought by designer Lorie Smith, who arrived at the court bearing a purely hypothetical injury at Colorado’s hands. While Smith has not actually been penalized by the state for violating that law, she worries that one day she might be, if she decides to design websites for weddings (she hasn’t yet), and if a same-sex couple asks her to design one for them, and if she turns them away, and if they report her to the state, and if the state takes action against her.

Given that, it might sound odd that Smith is the face of this case. But as law professor Hila Keren observes, it was precisely because Smith has not actually turned away any potential gay clients that she was chosen by the religious right’s legal apparatus — represented by the Alliance Defending Freedom, the lavishly funded organization representing Smith — to be the plaintiff in this suit. She can be the sole actor in the story, a living person whose (even hypothetical) injury can garner sympathy from the justices, even as there is no victim of her discrimination with a name and a face.

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As always, the conservatives on the court have seemingly bottomless sympathy for Christian plaintiffs who say their right to the fullest expression of their religious beliefs is being hindered. Yet we used to have both a common and legal understanding that the commercial space is one where you may have to adjust your personal preferences and abide by rules in ways you don’t elsewhere.

For instance, if I wrote something false in an opinion column — say, that the Affordable Care Act includes “death panels” before which disabled and elderly people will beg for their lives — the government would not be able to order The Post to remove the claim from its website, even though it’s a lie. That’s because First Amendment jurisprudence has always put debates about public issues at or near the top of the hierarchy, demanding as little government intervention as possible.

But if I aired a TV ad claiming that, for $19.95, I’ll send you a box of genuine Krugerrands — when, in fact, I’m mailing out slips of paper with the word “Gold” written on them, the Federal Trade Commission would demand my ads be taken off the air, and they would be. Commercial speech gets some First Amendment protection, but that protection doesn’t extend to that kind of lie.

For the conservatives on the court, however, religion — in particular, conservative versions of Christianity — changes everything, even how we should think about commerce. They’ve been steadily carving out more and more spaces where religious claims under the First Amendment trump every other right or law, whether it has to do with health-insurance regulations or Christian prayer in schools.

When it comes to the commercial right to discriminate, we had this debate in the middle of the 20th century. As Justice Ketanji Brown Jackson pointed out in oral arguments, “opposition to interracial marriages and to integration, in many instances, was on religious grounds.” But we as a society, in both law and practice, rejected those who said discrimination should be allowed if it’s based on a religious belief. We said you have a right to refuse to have friends of a different race, or write racist screeds and hand them out on a street corner. But if you open a restaurant or a bookstore or a car dealership, you have to serve everyone.

The fact that website design is expressive in some ways shouldn’t change that. Colorado isn’t telling Lorie Smith how to do her job, just that she can’t turn away customers based solely on their membership in one of the classes the state’s law protects. And the truth is, there would likely be little or no difference between a website she created for a straight couple and one she created for a gay couple. She just wants to effectively put a “No Gays Allowed” sign on her business.

If your state prohibits discrimination against LGBTQ people, you have to obey that law when you do business, even if you don’t like it. Or, at least you will until the court hands down its likely decision in this case.

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