Balancing Anti-Discrimination Law and the Free Speech Clause

A recent Supreme Court case has sparked further debate on the reach of the First Amendment’s free speech rights in contrast to state anti-discrimination laws. A common debate in recent years has been to what extent that free speech rights protect individuals and businesses. Lorie Smith, a website designer from Colorado, filed a suit challenging a Colorado anti-discrimination law on the basis that she wanted to be able to advertise that she would not build wedding websites for same sex couples. This mirrors a previous lawsuit, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, that sought to answer the question of whether or not the same law compelling the cake maker to make a cake that violated their religious beliefs violated the First Amendment. This new case continues this discussion and seeks to establish more clarity on the scope of the First Amendment.

This case was filed whilst Smith did not yet offer wedding websites through her business, so it was not retroactive based upon state intervention in her turning down a client. Instead, Smith filed it as she wanted to start offering wedding websites but wanted to advertise on her company site that she would not offer them to same sex couples due to her religious beliefs. The argumentation of Smith’s case lies in the fact that she decides what sites to create based upon the message of such sites rather than the individual seeking her service.

The Colorado Anti-Discrimination Act requires that all public businesses serve all customers regardless of a customer’s religion, sexual orientation, race, sex, disability, etc. This case seeks to answer the question of whether or not public accommodations law violates the Free Speech Clause of the First Amendment when it involves requiring a business to offer its services to all customers regardless of different characteristics such as sexual orientation, race, gender, etc? In the previous case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Court ruled that “religious and philosophical objections to same-sex marriage are protected views and can also be protected forms of expression.” This previous ruling contributed to the questions and approaches members of the Court took when approaching the case in oral arguments heard on December 5 of this year.

In their approaches to the case in oral arguments, the focus was on finding principles by which differentiations could be established regarding whether anti-discrimination law or the Free Speech Clause. Some elements explored through questions from the Judges involved the differentiation between a business being engaged in expression or just selling goods. This follows directly from the ruling from Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. Adding onto this, Judge Neil M. Gorsuch asked questions that sought to establish whether the messages expressed in the goods of this business were that of the client or the designer. Additionally, questions were asked by Judge Amy Coney Barrett to try to establish whether this case was truly about discrimination of same sex couples, or if it was based in refusing to create a supportive message. The highlights the potential limiting principles of anti-discrimination law, at least in terms of businesses, that may allow the Free Speech Clause to take priority.

This case is leaving room for a great deal of impacts upon law and society based on what the ruling ends up being. Judge Samuel A. Alito, as well as other judges, have noted that if this case is ruled in the favor of Smith it could allow businesses a great deal of exemptions from public accommodations law. This would allow discrimination based on other factors such as race, which was discussed in the oral arguments through questions about interracial marriage and if disagreements with that message would function the same as a message of same sex marriage. There is a lot of opportunity for many implications on society to be determined based on how the judges end up voting on this case, and what it means for anti-discrimination law, religious rights, and free speech.