Colorado web design: Supreme Court may create shift in First Amendment case law

With oral arguments, the U.S. Supreme Court seemed to lean toward ruling that a web designer in Colorado could refuse to serve same-sex couples given her Christian ideals. Their ruling could establish a First Amendment right to put religious beliefs above a state’s interest in restricting discrimination based on sexual orientation. (The New York Times, December 6, 2022, by Adam Liptak)

Berkeley law dean Erwin Chemerinsky, Los Angeles Times, December 4, 2022, warns that a decision for the designer could open a Pandora’s box of discrimination. “There will be grave consequences if the court rules in favor of Smith,” writes Chemerinsky, “There is no reason why such new 1st Amendment exemptions would be limited to sexual orientation. Those who want to discriminate against others based on race, sex or religion could simply raise a 1st Amendment defense. And this would seemingly extend to laws prohibiting discrimination in all contexts, such as in employment and housing.”

Mark Joseph Stern in SLATE, December 5, 2022, observed that Colorado law did not require the designer to create a website for a same-sex couple but one a wedding site is created that same-sex couple be allowed to purchase it. There is not compelled speech in support of same-sex marriage.

Law Professor Michael McConnell, Reason, December 6, 2022, supports the conservative view of the case. “…303 Creative is not about whether protections for LGBT people will be dampened.,” says McConnell, “The decision will apply across the board. The question is whether civil rights protections properly include the suppression of speech that disagrees with legal norms, or compels speech that celebrates those norms. Alternatively: do artists (including web designers) have the freedom to depict what subjects they wish, and how—even if they take money for doing it, and even if their perspective is hurtful (to some people)?”

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