AMNA NAWAZ: The rights of same-sex couples were once again before the U.S. Supreme Court
today.
John Yang begins with the backstory of a case that wrestles with the blurred line separating
free speech, religious beliefs, and discrimination.
JOHN YANG: Web site designer Lorie Smith's primary tools are a keyboard and a mouse,
in her view, the tools of an artist.
LORIE SMITH, Owner and Founder, 303 Creative: When I'm designing and creating many times,
very much like a traditional painter would use a paintbrush and colors and a white canvas,
I approach my work the same way.
I am custom-creating and writing and telling a story through imagery, color palettes, different
elements.
Each and every thing that I create expresses some sort of message, some sort of expression,
and everything that I create is unique and one-of-a-kind.
That's my specialty.
JOHN YANG: As a devout Christian, Smith says that message has to reflect what she sees
as her faith's view of Gods design.
LORIE SMITH: It is important to me that the messages that I create are consistent with
my faith.
And for that reason, there's some messages I can't design custom artwork for, no matter
who requests them.
JOHN YANG: Are there projects you have turned down for that reason because they didn't fit
with your beliefs or they conflicted with your beliefs?
LORIE SMITH: Yes, there are.
I have declined messages that are political.
It is important for me as an artist that I'm not only passionate about what I create, but
I believe in it.
JOHN YANG: Smith wants to offer custom Web sites for weddings, but Colorado's anti-discrimination
law would require her to offer them to same-sex couples.
And that, she says, would force her to create a message that conflicts with her beliefs.
LORIE SMITH: Nobody should be put in that position.
We should all be free to live and work consistent with our faith.
JOHN YANG: Sound familiar?
In 2018, the Supreme Court sided with Colorado baker Jack Phillips.
He refused to make a wedding cake for a gay couple.
That 7-2 ruling was on the narrow grounds that state officials were hostile to his religious
beliefs.
But Smith is making a different argument, saying that the Colorado law violates her
right to free speech.
She says that the government cannot dictate the message that a work of art conveys.
Colorado Attorney General Phil Weiser says, art or not, a business is a business.
PHIL WEISER (D), Colorado Attorney General: Anyone, Web site creator, a book writer, a
baker can make whatever service products they want to.
They then have to sell it to anyone who comes and asks for access to the product or service
if they're open to the public.
You could imagine a situation where Jews or Muslims or women are told, I'm sorry, I have
a certain expressive interest in providing this product or service.
It has to exclude you.
You have gutted this basic anti-discrimination concept.
JOHN YANG: The justices spent about two hours today working through those issues.
Marcia Coyle was there.
She's the chief Washington correspondent for "The National Law Journal."
Marcia, thanks for joining us.
MARCIA COYLE, "The National Law Journal": Pleasure, John.
JOHN YANG: One reason, it seemed to me, why this took so long, these arguments took so
long, since there are two essential freedoms in the Constitution that are colliding here,
protected speech on the one hand and equality on the other.
MARCIA COYLE: Absolutely, John.
And what also complicates this is that both sides disagree on what actually is being regulated
here.
Is it speech, as the Web site designer claims, or is it a business, as the Colorado government
claims?
And so the court spent a lot of time struggling with these two principles of anti-discrimination
and free speech.
JOHN YANG: And there was -- there was also a question, a lot of questions about, whose
speech was it?
Whose was really speaking here, the Web site designer or the couple getting married?
MARCIA COYLE: Exactly.
That was something Justice Sotomayor pointed out, because she looked at the Web site designer's
mockup of the wedding Web sites that she wants to create.
And she went page by page by page and kept saying, it's -- this is all about the couple.
It's not about your speech.
It's about the couple's story.
It's not your story.
So, yes, that was very much part of it.
Whose speech is this?
And the lawyer for Ms. Smith responded, well, book authors tell other people's stories,
but it's still their speech.
JOHN YANG: They also probed the question that we heard the Colorado attorney general talk
about earlier, that, where's the line?
If you carve out an exception to the anti-discrimination law for this, what else?
And here's Justice Sonia Sotomayor asking that question.
SONIA SOTOMAYOR, U.S. Supreme Court Associate Justice: But how about people who don't believe
in interracial marriage, or about people who don't believe that disabled people should
get married?
What's -- where's the line?
JOHN YANG: Does this get down to how they write this decision?
MARCIA COYLE: Oh, absolutely, because they're going to have to say, if -- if they do rule
for Ms. Smith, the Web site designer, they're going to have to say why what she does is
different from, say, interracial marriages, for example.
Why is it different from race?
And I think both the liberals and the conservatives on the court are very much concerned about
this line and where to draw it.
And I got the feeling after the argument they really don't have much idea where they're
going to draw, at least not now.
JOHN YANG: As we said in the tape, this is not the first time this issue has come before
the court.
And, at one point, there was a rather tense exchange between one of the justices and the
solicitor general from Colorado, hearkening back to that other case and about the way
the Colorado Civil Rights Commission treated him.
What
does this tell us about how this court approaches questions of religion?
MARCIA COYLE: The six-justice majority on this court is very strongly pro free exercise
of religion.
And when religion is part of a case, they're -- sort of their alarm bells go up because
they want to be protective of the practice of religion.
And I think Justice Gorsuch's comments were showing that he thinks that religion is being
disfavored again and again.
And he did not like what he called the reeducation program that the baker had to go through,
although the government claims that it was not a reeducation program.
It was important for the baker to know what the law actually says.
So, I think it just reflects their concern that religion not be a second-class amendment.
JOHN YANG: Marcia Coyle of "The National Law Journal," thank you very much.
MARCIA COYLE: Thank you, John.