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Today, the U.S. Supreme Court considers whether businesses have to provide services for a same-sex marriage. It's the case of a Colorado woman who runs a business. State law says same-sex couples should have equal access to public accommodations. The plaintiff says she is an artist with a right to control her free speech. Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: For nearly a decade, the Supreme Court has dodged and weaved on this clash of legal and religious values, declining to hear some cases and punting on one involving a baker who refused to make custom wedding cakes for same-sex couples. But today, the issue is back before a far more conservative court, a court that reached out to hear the case even before any same-sex couples complained they were the victims of discrimination. Lorie Smith is a Colorado web designer who, for the past decade, has created all kinds of custom websites for clients.
LORIE SMITH: The pieces that I create are art. They're one of a kind. They're unique. I cannot create something that violates the core of what I believe.
TOTENBERG: Smith says that because of Colorado's public accommodations law, she cannot do what she wants to do most - custom web designs for weddings. The reason - she believes that marriage should be only between a man and a woman.
SMITH: I want to design for weddings that are consistent with my faith. I can't do that because the state of Colorado is censoring and compelling my speech and forcing me to create custom websites that would contradict my view of marriage.
TOTENBERG: Colorado's Public accommodations law, like those in most but not all states, bans discrimination based on sexual orientation. That means that for now, Lorie Smith simply doesn't do any web design work at all for weddings. And even though she hasn't actually turned anyone away, she's preemptively challenging Colorado's law as a violation of her right to free speech and expression. Colorado Attorney General Philip Weiser says the state law is not seeking to dictate what Smith says in her web designs.
PHILIP WEISER: Any individual, any business can create whatever they want. Once they create what they want, though, if you open up your doors and you say you're serving the public, you have to serve everyone regardless of sexual orientation, religion, race, gender.
TOTENBERG: In other words, he says, the state doesn't care what Smith is selling.
WEISER: The question is more one of conduct. Will you sell the product or service to whoever from the public knocks on your door?
TOTENBERG: Lorie Smith says she's designed other kinds of websites for gay and lesbian clients. And she's refused to use her talents for other people who want to convey all kinds of other messages she disagrees with.
SMITH: I've declined political messages, messages that promote atheism, messages that are anti-American, messages that are racist, messages that denigrate LGBT people or other people. No matter who requests them, I have to say no.
TOTENBERG: University of Pennsylvania law professor Tobias Wolff says that just doesn't work as a legal rule.
TOBIAS WOLFF: Imagine if the website designer, the cake decorator, the wedding photographer - they show up at the wedding, and they then proceed to say to the people getting married, I don't like this part of your vows, and these people can't be in your wedding party because I'm the speaker here. We would think they were nuts, right? But you aren't a street corner speaker standing on a soapbox proclaiming your own message when you set up a business and sell your talents to the commercial marketplace. You are placing those talents in service of your customers. And that's just a very different situation and one that the First Amendment treats very differently.
KRISTEN WAGGONER: Speakers don't lose their rights when they enter the public square and try to earn a living.
TOTENBERG: Lawyer Kristen Waggoner, who will represent Lorie Smith in the Supreme Court today. She draws the constitutional line in a very different place.
WAGGONER: The line is the government doesn't have the power to compel an individual to speak. It's simple, and it has stood the test of time, and it's protected by the First Amendment - just as a Black cross sculptor does not want to design for the Aryan church or a Democratic publicist doesn't want to write a brochure that's advancing Donald Trump's agenda.
TOTENBERG: That begs the question, replies professor Wolff.
WOLFF: The compelled speech doctrine has never been applied in the commercial marketplace where the only thing that the government is doing is establishing a neutral set of rules that everybody has to play by.
TOTENBERG: If that's no longer the rule, he asks, what if a business owner were to say that he doesn't want to serve interracial couples because he views them as acting against God's law that marriage should be between people of the same race? Waggoner replies that the Supreme Court drew a different line in its decision on same-sex marriage.
WAGGONER: It explained very clearly that those who hold beliefs based on reasonable religious and philosophical premises - that they're decent and honorable and held in good faith, whereas laws like interracial marriage laws are grounded in white supremacy, and they're designed to subjugate an entire class of people.
TOTENBERG: Now the Supreme Court will decide just where state, local and even the federal government may draw the line.
Nina Totenberg, NPR News, Washington.
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