Lawrence Hurley

The Supreme Court on Friday ruled in favor of an evangelical Christian web designer from Colorado who refuses to work on same-sex weddings in a decision that deals a setback to LGBTQ rights.

The justices, divided 6-3 on ideological lines, said that Lorie Smith, as a creative professional, has a free speech right under the Constitution’s First Amendment to refuse to endorse messages she disagrees with. As a result, she cannot be punished under Colorado’s antidiscrimination law for refusing to design websites for gay couples, the court said.

The ruling could allow other similar business owners to evade punishment under laws in 29 states that protect LGBTQ rights in public accommodations in some form. The remaining 21 states do not have laws explicitly protecting LGBTQ rights in public accommodations, although some local municipalities do.

“The First Amendment envisions the United States as a rich and complex place, where all persons are free to think and speak as they wish, not as the government demands,” Justice Neil Gorsuch wrote for the court.

Gorsuch, who wrote a 2020 ruling that expanded LGBTQ rights in the employment context, said that public accommodation laws play a vital role in protecting individual civil rights.

“At the same time, this court has also recognized that no public accommodation law is immune from the demands of the Constitution. In particular, this court has held, public accommodations statutes can sweep too broadly when deployed to compel speech,” he added.

Smith, who opposes same-sex marriage on religious grounds and runs a business designing websites, sued the state in 2016 because she said she would like to accept customers planning opposite-sex weddings but reject requests made by same-sex couples wanting the same service. She was never penalized for rejecting a same-sex couple — and it’s unclear if she ever did — but sued on hypothetical grounds. 

Smith argued that as a creative professional she has a free speech right to refuse to undertake work that conflicts with her views.

Civil rights groups said Smith was asking the conservative-majority court for a “license to discriminate” that would gut public accommodation laws that require businesses to serve all customers.

Justice Sonia Sotomayor, writing the dissent, said the court’s ruling was part of “a backlash to the movement for liberty and equality for gender and sexual minorities” and a type of “reactionary exclusion,” calling it “heartbreaking.” 

In a stern voice, she read a summary of her dissent from the bench, saying in court that the decision allowing Smith to sell her product only to opposite-sex couples “makes a mockery of the law.”

She compared Smith’s situation to historic cases of racial discrimination in which restaurants would refuse to serve Black people inside but would allow them to collect pick-up orders from a side counter, effectively treating them like second-class citizens.

Sotomayor noted that Smith will still sell her services to LGBTQ people only if it is for an opposite-sex wedding. For LGBTQ customers, Sotomayor said, “she will sell at a side counter.”

The court’s two other liberal justices, Elena Kagan and Ketanji Brown Jackson, both joined Sotomayor’s dissent.

Smith’s lawyer, Kristen Waggoner, said the court had simply reaffirmed that Americans cannot be forced to say things they do not believe.

“This is a win for all Americans. The government should no more censor Lorie for speaking consistent with her beliefs about marriage than it should punish an LGBT graphic designer for declining to criticize same-sex marriage,” she added.

Civil rights groups viewed the ruling very differently, with David Cole, national legal director of the American Civil Liberties Union, saying the court had for the first time found that some people have a green light to violate antidiscrimination laws.

“The court’s decision opens the door to any business that claims to provide customized services to discriminate against historically-marginalized groups,” he added.

December’s oral argument featured a colorful array of hypothetical questions as the justices wrestled with the potentially broad implications of the case. At one point, conservative Justice Samuel Alito questioned whether a “Black Santa“ at a shopping mall would be obliged to take a picture with a child dressed up in a Ku Klux Klan outfit.

The case was the latest example of the conflict over the Supreme Court’s own 2015 ruling that legalized same-sex marriage, which conservative Christians oppose even as Congress has moved to enact a law with bipartisan support that bolsters protections for married same-sex couples.

Smith, whose business is called 303 Creative, told NBC News she has always been drawn to creative projects but also has strongly held beliefs that “marriage is between one man and one woman — and that union is significant.”

Smith sued the Colorado Civil Rights Commission and other state officials out of concern that she could be sanctioned under its antidiscrimination law that bars discrimination on the basis of sexual orientation in public accommodations, although she has not been sanctioned yet. Lower courts ruled against Smith, prompting her to appeal to the Supreme Court.

The case gave the court a second bite at a legal question 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 make a wedding cake for a gay couple. The court ruled then that the baker, Jack Phillips, did not receive a fair hearing before the state Civil Rights Commission because there was evidence of anti-religious bias.

State officials said in court papers that they had never investigated Smith and had no evidence that anyone had ever asked her to create a website for a same-sex wedding. Colorado Solicitor General Eric Olson wrote that there is a long tradition of public accommodations laws protecting the ability of all people to obtain goods and services.

Smith, like Phillips before her, is represented by Alliance Defending Freedom, a conservative Christian legal group, which has had success arguing religious rights cases at the Supreme Court in recent years. 

The Supreme Court ruled on the baker case before the retirement of Justice Anthony Kennedy, who voted in favor of LGBTQ rights in key cases. Now, following three appointments made by then-President Donald Trump, the court has six conservative and three liberal justices.

Kennedy was in the majority when the court legalized gay marriage on a 5-4 vote. In another major victory for LGBTQ rights, the Supreme Court in 2020 ­— to the surprise of many court-watchers ­­— ruled in the decision written by Gorsuch that a federal law that prohibits sex discrimination in employment protects LGBTQ employees.

A year later the court ruled in favor of an agency affiliated with the Catholic Church 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 consistently backed religious rights.

The Supreme Court on Tuesday allowed Title 42 — a Trump-era immigration policy implemented when the pandemic broke out to quickly expel asylum-seekers at the border — to remain in effect for now, putting a judge’s ruling that would have ended it last week on hold.

The court voted 5-4 to grant an emergency request by 19 Republican state attorneys general who sought to intervene in defense of the policy. The decision puts on hold a ruling by Washington-based U.S. District Judge Emmet Sullivan, who said the Centers for Disease Control and Prevention’s implementation of the policy was “arbitrary and capricious.” Sullivan’s ruling was due to go into effect Dec. 21.

Conservative Justice Neil Gorsuch joined the three liberals on the court in voting against the stay request. The brief court order said that while the administration cannot set aside the Title 42 policy, the decision “does not prevent the federal government from taking any action with respect to that policy.”

The Supreme Court also agreed to hear oral arguments in Februaryand rule on whether the states can intervene, with a decision due by the end of June. The policy will remain in place at least until that ruling is issued.

Gorsuch suggested in a dissenting opinion that the court’s decision to intervene seemed to be more related to the crisis at the border than the legal issues in the case, which concerns whether the states can intervene in defense of a pandemic-era policy, noting that the states “do not seriously dispute that the public-health justification undergirding the Title 42 orders has lapsed.”

Gorsuch acknowledged that the states may have valid concerns, but, he added, “the current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials has failed to address a different emergency. We are a court of law, not a policymaker of last resort.”

The court’s intervention averts what many had predicted would be an additional surge of people seeking to enter the United States at a time when border crossings are already high. Without the policy in place, people seeking asylum would be able to enter the U.S., where they could be waiting for years for a court date if they pass their initial interview with authorities.

Title 42 is strongly backed by Republicans alarmed at the number of people crossing the southern border and it is opposed by immigrant rights groups, who say it is inhumane. Some Democrats, including West Virginia Sen. Joe Manchin, have expressed support for it being kept in place at least temporarily. Another Democrat, California Gov. Gavin Newsom, has warned that the system for handling migrants seeking asylum would “break” if Title 42 is ended.

Chief Justice John Roberts on Dec. 19 placed a temporary hold on Sullivan’s ruling while the Supreme Court weighed its next steps.

States led by the Republican attorneys general of Arizona and Louisiana filed the emergency request last week after the U.S. Court of Appeals for the District of Columbia Circuit rejected their request to intervene in the case in a bid to prevent the policy from being wound down.

The states argued that President Joe Biden’s administration had “abandoned meaningful defense” of the rule, saying it effectively engineered, with the help of lawyers challenging the policy, a ruling that would end it. As a result, the states sought to intervene to keep it in place. The appeals court had said in its order that the states waited too long before they tried to intervene.

In a separate case, the administration’s previous effort to unwind the policy had been blocked by a federal judge.

Title 42, named after a section of U.S. law, gives the federal government power to take emergency action to keep diseases out of the country. Then-President Donald Trump invoked it when the coronavirus pandemic broke out in March 2020, and it has remained in effect during the Biden administration. More than 2 million people have been expelled from the country as a result.

Many nationalities and demographics have been exempted from the policy, including children traveling unaccompanied and some nationalities whose countries refuse to repatriate them, such as Cuba, Nicaragua and, until recently, Venezuela.

Various civil rights groups, including the American Civil Liberties Union, challenged the policy on behalf of people affected by it.

 The Supreme Court on Friday temporarily allowed an Orthodox Jewish university in New York to deny official recognition to an LGBTQ student group, the latest in a series of decisions in favor of religious rights.

Justice Sonia Sotomayor in a brief order granted an emergency request made by Yeshiva University, which claims that recognizing the group would be contrary to its sincere religious beliefs. Sotomayor has responsibility for emergency applications arising from New York.

The dispute is the latest clash between religious rights and LGBTQ rights to reach the high court, which has a 6-3 conservative majority.

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Friday’s decision puts on hold a decision by a New York state judge, who ruled in June that the university was bound by the New York City Human Rights Law, which bars discrimination based on sexual orientation. The university argues that it is a religious institution and therefore should be exempted from the law. Requiring it to endorse the group would be a “clear violation” of its rights under the U.S. Constitution’s First Amendment, which protects the free exercise of religion, the university argues. Sotomayor said the lower court ruling would remain on hold “pending further order” of the Supreme Court, suggesting the court could issue a more detailed order in the coming days.

“Yeshiva shouldn’t have been forced to go all the way to the Supreme Court to receive such a commonsense ruling in favor of its First Amendment rights. We are grateful that Justice Sotomayor stepped in to protect Yeshiva’s religious liberty in this case,” said Eric Baxter, a lawyer at the religious liberty legal advocacy group Becket, which is representing Yeshiva.

The Pride Alliance group, which first sought recognition in 2019, sued in April 2021, saying the university was required to grant its request because it is a place of public accommodation that is covered by the anti-discrimination law.

Katherine Rosenfeld, a lawyer for Pride Alliance, said Friday that the group “remains committed to creating a space space for LGBTQ students” on campus and would await final action from the Supreme Court.

Yeshiva, which describes itself in court papers as “a deeply religious Jewish university,” has said that officials concluded after consulting with Jewish religious scholars that an official LGBTQ club would be inconsistent with its religious values. The university was founded in 1897 for religious purposes and says it maintains that character even as it expanded its educational scope to include secular programs.

The New York City anti-discrimination law includes an exemption for religious organizations, but Manhattan-based Judge Lynn Kotler concluded that Yeshiva did not meet the relevant criteria.

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Pride Alliance, joined by four individual plaintiffs, said in its response that the university’s request was premature and questioned whether there was an emergency that warranted Supreme Court intervention. All the university would be required to do if the judge’s order was allowed to go into effect is provide the group access to the same facilities that 87 other groups already receive, the group’s lawyers said.

Kotler’s ruling “does not touch the university’s well-established right to express to all students its sincerely held beliefs,” the lawyers said in court papers. They noted that a LGBTQ club has existed within the university’s law school for decades and that the university’s student bill of rights says that the New York human rights law applies to students.

Members of Pride Alliance have said that they are planning events backing LGBTQ rights for the coming weeks, including some timed around Jewish holidays.

The Supreme Court’s 6-3 conservative majority has strongly backed religious rights in recent cases, including several in its last term that ended in June. Among those rulings, the court ruled in favor of a high school football coach who led prayers on the field after games, sparking concerns from school officials that his actions could be viewed as government endorsement of religion as prohibited under the First Amendment.

The court, which legalized same-sex marriage in 2015, has also weighed several cases pitting LGBTQ rights against religious rights, ruling in 2021 in favor of a Catholic Church-affiliated agency that Philadelphia had barred from participating in its foster care services because the group refused to place children with same-sex couples. In 2018, the court ruled in favor of a conservative Christian baker in Colorado who refused to make a wedding cake for a same-sex couple.

Along similar lines, the justices are set to hear oral arguments this fall in a case involving a web designer from Colorado who wants the court to rule that, based on her evangelical Christian beliefs, she does not have to design wedding websites for same-sex couples. The court is currently on its summer recess, with the new term set to start in October.