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Conservative justices signal support for artist who refused to serve same-sex couple

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The U.S. Supreme Court is set to hear arguments Monday in a major case for LGBTQ rights that could determine whether American businesses can lawfully refuse to serve same-sex couples based on the owner's religious beliefs. File photo by Bonnie Cash/UPI
The U.S. Supreme Court is set to hear arguments Monday in a major case for LGBTQ rights that could determine whether American businesses can lawfully refuse to serve same-sex couples based on the owner's religious beliefs. File photo by Bonnie Cash/UPI | License Photo

Dec. 5 (UPI) -- The U.S. Supreme Court's conservative justices signaled support on Monday for a web designer in Colorado who refused to provide services to a same-sex couple.

The case has enormous social implications as the ruling has the potential to end equal treatment for LGBTQ people at businesses that are open to the general public based on the owner's religious beliefs.

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Lorie Smith, a conservative evangelical Christian web designer in Denver, sued in 2016, claiming the state's anti-discrimination law violated her faith and free speech rights under the First Amendment.

Colorado law bans discrimination based on sexual orientation in all public accommodations.

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"Let's just say that [The New York Times] for Gay Pride Month decides that it's going to run -- to promote and recognize same-sex marriage -- only same-sex marriage announcements, turns away heterosexual announcements, not because it disparages or disagrees with opposite-sex unions but because it's trying to promote something else," Amy Coney Barrett said Monday to Colorado Solicitor General Eric Olson.

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"Can it do that? That's a protected characteristic under the law."

Meanwhile, Brett Kavanaugh suggested a scenario where a win for Colorado could mean that a freelance speechwriter might be compelled to write speeches that violate their "most deeply held convictions."

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Fletcher responded back that speechwriters "aren't likely to be public accommodations."

Justice Samuel Alito Jr., who penned the Supreme Court's decision to overturn Roe vs. Wade this summer, echoed Kavanaugh's line of thinking and said customers could be forced "to espouse things they loathe."

Meanwhile, the court's three liberal justices -- Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson -- questioned if the websites Smith would create would reflect her own speech or of those who hired her.

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Jackson wondered whether photographers hired to photograph Santa in shopping malls would be able to exclude Black children to which Alito hypothesized a scenario where a Black Santa would be free to refuse children wearing Ku Klux Klan uniforms, the Washington Post reported.

LGBTQ advocates have accused Smith of seeking a "license to discriminate" and fear that the high court's conservative 6-3 majority could allow businesses to roll back protections for same-sex couples after Congress passed legislation last week to protect same-sex marriages.

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Civil liberties advocates said a ruling in Smith's favor would open the door to discriminatory practices against other minority groups.

Smith is the owner and operator of the independent graphic design firm 303 Creative. She was not opposed to creating garden variety graphics for same-sex couples, but said an internal conflict arose when she was asked to create specific messaging that celebrated same-sex marriage.

"When I chose to start my own business as an artist to create custom expression, I did not surrender my First Amendment rights," she said.

Worried that she would face sanctions from the state, Smith said she decided to act preemptively. She sued the Colorado Civil Rights Commission and other officials, however, all the lower courts ruled against her before the case was finally appealed to the Supreme Court.

Smith said the crux of her case lies in her belief that "marriage is between one man and one woman -- and that union is significant," she said.

In 2018, the Supreme Court faced a similar question when it ruled in favor of a Christian baker from Colorado who refused to make a wedding cake for a gay couple. However, the ruling was based on the plaintiff, Jack Phillips, not getting a fair hearing before the state Civil Rights Commission -- not because of the more pressing discrimination issues raised by the case.

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At the time, the majority withheld a ruling on that matter until "some future controversy involving facts similar to these" came along again.

In the years since the bakery case, the court has rejected two other similar appeals from Washington state and Oregon.

A ruling in Smith's favor would affect anti-LGBTQ discrimination laws in as many as 29 states, while all remaining states have no laws on the books that protect LGBTQ individuals in public accommodations, despite some local governments that do.

In court documents, state officials noted that Smith's case was never officially investigated and there was no evidence to suggest that anyone had ever gone to her seeking graphics for a gay wedding.

Smith is being represented by attorneys with the conservative Christian legal group Alliance Defending Freedom, which also represented Phillips in the 2018 case.

In 2015 the Supreme Court voted 5-4 to legalize same-sex marriage, which happened before the retirement of liberal Justice Anthony Kennedy and the death of Justice Ruth Bader Ginsburg. Since then, three conservative justices and one liberal justice have been appointed to the court.

The high court followed that momentous ruling with another surprise in 2020 when it extended federal protections to LGBTQ employees who faced discrimination at work.

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In June, the same conservative majority overturned Roe v. Wade, with Justice Clarence Thomas calling for a gay marriage rights ban in his concurring opinion.

The stakes are high for the 2015 same-sex marriage law as Thomas and others in the conservative bloc are expected to try to poke holes in ruling in an effort to overturn it.

Meanwhile, Colorado Attorney General Phil Weiser said the U.S. Constitution does not protect discrimination.

"Once you open up your doors to the public, you have to serve everybody," he said. "You can't turn people away based on who they are.

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