Supreme Court to Hear 'Free Speech' Case Denying Services to LGBTQ+ Customers

A case claiming that a would-be wedding website designer should not be subjected to "compelled speech" by serving same-sex couples is headed to the Supreme Court. Legal scholars say the outcome is in little doubt; what's uncertain, they note, is how narrowly the Court will craft its ruling – and what precedent, if any, the ruling will set.

The case has drawn the attention of The Conversation, which published an analysis of the argument being made by the plaintiff, Lorie Smith. A Colorado resident and Evangelical Christian, Smith brought suit against Colorado's Civil Rights Commission and the state's attorney general, despite not even offering the services in question. Her claim is hypothetical: That "being required to prepare a same-sex wedding website would violate her First Amendment rights by forcing her to speak – what lawyers refer to as 'compelled speech,'" The Conversation explained.

"The constitutional right to freedom of 'speech' has historically been understood to cover a variety of ways people express themselves, including in writing, art and protest," the article summarized. "But not only does it protect the right to protect one's speech, it also safeguards the right to not speak in the first place."

In other words, if Smith offers wedding-related services to some, but not all, couples, and discriminates as a matter of religious principle, then – so she argues – it would be unconstitutional for the government to punish her for refusing to "speak" in a manner that upholds a principle, such as marriage equality, with which she disagrees.

But the idea that "speech" extends from speaking and writing to services like designing websites (or baking cakes, as in another high-profile case that the Supreme Court decided, albeit narrowly) has yet to be codified in law in a detailed manner.

Not that the broad outlines are much in doubt. Observers of the Court – which has proven itself reliably favorable to conservative causes in its recent opinions, including the overturning of women's reproductive rights despite 50 years of precedent – see the ruling as foreordained.

"The fact the court took the case certainly suggests they are likely to rule in her favor," University of California/Davis law professor emeritus Alan Brownstein told Newsweek.

University of Dayton faculty member Charles Russo agreed, telling the news magazine, "There are already five justices in her corner," referring to the Court's right-wing supermajority.

That, Brownstein noted, means that the "big issue is how narrow the court's opinion is."

If extremely narrow – as with the Court's earlier decision in the case of Colorado baker Jack Phillips, who similarly challenged his state's anti-discrimination laws and argued that his baked goods are a form of artistic expression, and therefore speech – the underlying question could be left murky, requiring still more Supreme Court rulings to define the limits of what constitutes free speech. But a broad ruling could have implications that reach well beyond questions of baking a cake for a gender transition celebration or accommodating two brides or two grooms with goods and services.

A broad ruling, Brownstein noted to Newsweek, "could tear apart civil rights law." As an example, Brownstein added, "You could say: 'I won't sell food to a Black person in a restaurant because I don't want to communicate the message that one should serve African Americans along with whites.'"

The retired law professor boiled it down to the problem that although "there is a body of law on how to rule when the government stops people from exercising freedom of speech, the rules are less clear when it comes to compelled speech," Newsweek summarized.

However, Brownstein said, "We have a maze of inconsistent cases that have never been put together – in doctrine – that supports that framework," and that, he said, is "one of the reasons this is a hard case."