Can American retailers refuse to serve gay customers in the name of their religious beliefs? The Supreme Court, steeped in conservatism, opens this ultra-sensitive debate on Monday in a case with strong “déjà vu” flavor.
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In 2018, the Supreme Court opened a case of a Christian pastry chef who refused to bake a wedding cake for a gay couple. She had agreed to him for other reasons, without enacting broad, generalizable principles.
The question, highly controversial in the US, quickly surfaced again, this time from a website designer: Lorie Smith, who describes herself as a devout Christian, doesn’t want to create websites for same-sex marriages.
Like pastry chef Jack Phillips, she works in Colorado, where a law since 2008 outlaws discrimination based on sexual orientation and can fine offenders up to $500.
Unlike him, however, she was never approached by homosexual clients, much less worried by the authorities. That didn’t stop him from preemptively suing Colorado law.
After losing at first instance and on appeal, she turned to the Supreme Court, which agreed to intervene by limiting the issue to the freedom of expression of dealers whose work has an artistic dimension.
“Flowers, photos, costumes…”
“Lorie is willing to create custom websites for anyone, including those who call themselves LGBT, as long as the message doesn’t conflict with their views,” her attorneys wrote in a statement sent to the court ahead of the hearing.
But “Forcing artists such as painters, photographers, authors, graphic designers or musicians to convey messages that go against their beliefs violates the First Amendment of the Constitution,” which guarantees freedom of expression and religion, they added.
The law does not capture the content of the marketed products, but requires that they be offered to all customers, the Colorado attorneys countered in their own presentation.
To them, Ms. Smith could very well adorn her websites with biblical messages about marriage “between a man and a woman,” but cannot refuse to sell them to homosexual couples.
They point out that many goods “carry deep meaning for buyers: flowers for a woman’s funeral, a family picture for the birth of a baby, a suit for a new job”… and that a refusal to sell is not negligible.
“aggressive”
Given the deep divisions in American society, many actors have joined the process of supporting Ms. Smith (elected Republicans, religious groups, conservative associations) or Colorado (elected Democrats, minority defenders, etc.).
The US government, which supported pastry chef Jack Phillips under Donald Trump, is defending Colorado’s position this time. His law “does not oblige us to accept or transmit any message mandated by the authorities,” writes representative of Joe Biden’s Democratic administration.
Noting that many businesses have a creative dimension, minority advocacy groups have asked the Supreme Court – which legalized same-sex marriage in 2014 – to dismiss Ms Smith’s arguments.
Otherwise, “Architects might refuse to design homes for black families, pastry chefs to make birthday cakes for Muslim children, florists to provide bouquets for the funeral of a gay person,” counted David Cole, the ACLU’s director, during a presentation to Press.
But these associations are concerned “by the court’s aggressive stance,” said Mary Bonauto, head of the GLAD association, which defends the rights of LGBT people.
Transformed by Donald Trump, it has six out of nine conservative judges who recently gave the religious right resounding victories, notably by blowing up abortion rights.
The Supreme Court is scheduled to rule on Ms. Smith’s case by June 30, 2023.