Supreme Court to decide whether businesses may refuse LGBTQ couples for same-sex wedding services

WASHINGTON – Cindy Wilker, a retired Marine who jokingly describes herself as an "angry old lesbian," isn’t easily offended – or pushed around.

But the 62-year-old Floridian was dumbstruck when a florist declined to sell her roses she hoped to buy for the woman she has loved for decades. She left the shop in tears.

"When she realized who they were for I could see that it was not going to happen. She said, 'What are you?'" Wilker recalled. "Every time now when I walk into a store I wonder, are they going to say something? Are they going to embarrass me?"

Seven years after the Supreme Court legalized same-sex marriage in a watershed civil rights case, business owners and LGBTQ rights groups remain locked in a battle over whether businesses that sell goods and services to the public may reject LGBTQ couples as customers based on religious objections – particularly when matrimonial services for same-sex weddings are involved.

Wilker’s interaction with the florist is controlled by a byzantine patchwork of laws and court decisions that vary by state. The nation’s highest court will revisit one key aspect of that morass later this year: Whether the First Amendment's protection of free speech allows business owners who object to same-sex marriage to refuse wedding services to LGBTQ couples.

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Business owners involved in similar recent litigation say it’s not about denying service because of a person’s sexual orientation. Instead, they say, florists, wedding planners and other businesses shouldn’t be compelled by the government to endorse same-sex marriage through their services and products if it’s counter to their beliefs.

"No one should be forced to say something that they don’t believe," said Kristen Waggoner, general counsel at the conservative Alliance Defending Freedom, which is representing a website designer in the pending Supreme Court case. "It’s not the government that should be making that choice."

That question arrives at the court as LGBTQ rights have reemerged as a potent political issue with some conservative states targeting conversations about sexual orientation and gender identity in schools and others passing laws to ban transgender girls from playing on girls’ sports teams. About 7% of Americans identify as LGBTQ, double the number who identified as something other than heterosexual in 2012, a Gallup poll showed.

Four years ago, a 7-2 majority of the high court sided with a Colorado baker who refused to create a custom wedding cake for a same-sex couple. But that decision was focused narrowly on how the state’s civil rights commission treated the baker, Jack Phillips. The court dodged deeper questions about where to draw the line between a business owner’s religious freedom and LGBTQ rights.

The lack of clarity from the court has prompted more lawsuits, including from a florist in Washington state who declined to create an arrangement for a same-sex wedding as well as the Colorado website developer. It has also left business owners and LGBTQ customers on an uncertain legal footing in many states.

"We always have to be leery," Wilker said. "The only way we can fight back is to shop in places that support us, or at least acknowledge that we exist."

'It's who I am'

Lorie Smith, owner of 303 Creative, the Denver-based website design firm, doesn’t have a problem serving LGBTQ customers. That's a point she and her attorneys have stressed repeatedly in their appeal to the Supreme Court and in interviews.

But same-sex marriage itself, Smith says, flies in the face of her religious beliefs, and she wants to decline to make websites for such ceremonies despite a Colorado law barring her from discriminating on the basis of sexual orientation. How can the government, Smith asks, require her to build a website for a ceremony that conflicts with a core belief?

"Everything that I create is art…it’s not just me producing what a client has asked for,” said Smith, who started her business in 2012. "I’m a Christian artist. Everything I do is intertwined with my faith. It's not something I can check at the door. It's who I am."

Colorado, like 24 other mostly Democratic-led states, prohibits discrimination based on sexual orientation by businesses. Roughly half of the states also have laws that prohibit the government from burdening a person's exercise of their religion.

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Smith’s appeal challenged the Colorado anti-discrimination law under two clauses in the First Amendment: One that protects Americans' ability to exercise their religion without government interference and another that protects free speech.

"The artwork that I create to glorify and honor God – that’s what drives my business," Smith said. "What I'm asking for is to create artwork that is consistent with my beliefs."

The Supreme Court agreed to decide only the speech claim presented in the case.

Because Smith's websites are custom they represent her speech as well as that of her customers, her lawyers say. But critics say that argument, which the Colorado baker also raised, would open a door to all sorts of businesses being able to skirt anti-discrimination laws. What about a makeup artist, restaurant chef, or limousine chauffeur? Could they also claim their work is a form of speech deserving of recognition and protection under the First Amendment?

"You have a view that a cake can be speech because it involves great skill and artistry," Associate Justice Elena Kagan pressed during the 2017 oral arguments in Jack Phillips' case. "I guess I'm wondering if that's the case, you know, how do you draw a line? How do you decide, 'Oh, of course, the chef and the baker are on one side...versus the hairstylist or the makeup artist?"

Waggoner, who represented Phillips, told the justices that the line is drawn at whether the product is "communicating something" and whether the medium is similar to others the court has recognized.

But David Cole, national legal director for the American Civil Liberties Union, which represented the couple in the wedding cake case, asserted that nondiscrimination laws "don’t single out religion." Instead, Cole said, "they regulate business conduct serving customers, and they simply require that you serve all customers equally."

"There can't be a different rule for those businesses that deem themselves expressive or religious,” he said.

A three-judge panel of the Denver-based U.S. Court of Appeals for the 10th Circuit last year ruled against Smith. The court agreed that her websites are a form of speech. It also said the state’s anti-discrimination law compelled Smith to create speech that celebrated same-sex marriage. But in a 2-1 ruling, the court said that Colorado had an interest in preventing discrimination and ensuring "equal access" to goods and services. And so it upheld Colorado's law.

Roberts' prediction

Similar disputes about discrimination arose during the civil rights movement as Black Americans fought discrimination at restaurants, hotels and other businesses in the Jim Crow South. In a 1964 decision, a unanimous Supreme Court held that the anti-discrimination provisions of the 1964 Civil Rights Act were permitted under the federal government’s constitutional power to regulate interstate commerce.

Lawyers for the religious plaintiffs today draw a distinction between racial discrimination, which is based on a person’s identity, and the message that business owners such as Smith are being asked to amplify in the case of same-sex marriage.

"It's never about the individual," said Matt Sharp, senior counsel with Alliance Defending Freedom. "It's always about the specific message."

In a decision that was widely celebrated on the political left and by some Republicans, a 5-4 majority of the Supreme Court ruled in 2015 that states cannot deny marriage rights to LGBTQ individuals. For many people, the ruling was a reflection of an evolution the nation had already undergone in its views on gay marriage.

"They ask for equal dignity in the eyes of the law," said Associate Justice Anthony Kennedy, who has since retired. "The Constitution grants them that right."

Chief Justice John Roberts, who wrote a dissent in the Obergefell v. Hodges decision, predicted then the types of disputes that are coming to the high court now.

“Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage," Roberts wrote. "There is little doubt that these and similar questions will soon be before this court."

But William Eskridge, a professor at Yale Law School and expert on LGBTQ rights, questioned just how often conflicts over same-sex marriage are occurring in practice. Most business owners, he said, are probably happy to have as many customers as they can. Most LGBTQ people, he predicted, are probably not interested in shopping at businesses where an owner has a strong religious objection to their sexual orientation.

In other words, the market is likely more of a driving force than the court.

"The law is peripheral to all of that," Eskridge said. "The world has changed."

This article originally appeared on USA TODAY: Supreme Court to decide if businesses may deny same-sex weddings