MARY LOUISE KELLY, HOST:
The question of discrimination was back before the Supreme Court today. Justices heard more than two hours of arguments in a test of public accommodations laws that protect same-sex couples from discrimination. You may recall that four years ago, the high court sidestepped the issue in a case involving a Colorado baker who refused to make custom wedding cakes for same-sex couples. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: On one side is the state of Colorado, which, like 29 other states, requires businesses that are open to the public to offer equal access to everyone regardless of race, religion, gender and sexual orientation. On the other side are business owners who see themselves as artists and don’t want to use their talents to express a message they disagree with. Challenging the law is Lorie Smith, a custom web designer who’s opposed to same-sex marriage.
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LORIE SMITH: I want to design for weddings that are consistent with my faith.
TOTENBERG: She’s preemptively suing Colorado because she believes that the state public accommodations mandate violates her right of free speech. In the Supreme Court today, liberal Justices Kagan, Sotomayor and Jackson had all looked at Smith’s planned website, which includes typical information about dates, hotel accommodations, wedding registry, etc. So if she’s offering that kind of website to Mike and Mary, asked Kagan, why not the identical site for Mike and Mark? Kristen Waggoner, representing Smith, said that would be unconstitutional compelled speech.
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KRISTEN WAGGONER: When you switch out those names, you’re switching out the concept and the message that is actually in the website.
TOTENBERG: Justice Sotomayor followed up.
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SONIA SOTOMAYOR: How about people who don’t believe in interracial marriage? I’m not going to serve those people ’cause I don’t believe Black people and white people should get married.
TOTENBERG: Justice Jackson asked about two photography store Santas at a mall, one white and one Black. Both offer photos of children with Santa, but one aims for a classic nostalgia photo with sepia colors and dates back to the 1940s and ’50s.
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KETANJI BROWN JACKSON: But precisely because they’re trying to capture the feelings of a certain era, their policy is that only white children can be photographed with Santa in this way.
TOTENBERG: Lawyer Waggoner dodged and weaved, never really giving an answer. Justice Alito, however, had another hypothetical with Justice Kagan inserting a comment. Take a listen.
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SAMUEL ALITO: An unmarried Jewish person asks a Jewish photographer to take a photograph for his Jdate dating profile. It’s a dating service, I gather, for Jewish people.
ELENA KAGAN: It is.
(LAUGHTER)
ALITO: All right. Maybe Justice Kagan will also be familiar with the next website I’m going to mention. So next, the Jewish person asks a Jewish photographer to take a photograph for his ashleymadison.com…
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ALITO: …Dating profile. I’m not suggesting that. I mean, she knows a lot of things. I’m not suggesting – OK. Does he have to do it?
TOTENBERG: For the uninitiated, ashleymadison.com is a website for married people who want to have affairs. Alito also built on Jackson’s two-Santa example, asking about the Black Santa at the other end of the mall.
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ALITO: And he doesn’t want to have his picture taken with a child who’s dressed up in a Ku Klux Klan outfit. That Black Santa has to do that?
TOTENBERG: All the justices pressed each side to draw a line. If the court says Lorie Smith does not have to provide her services for same-sex weddings, then what about the baker, the jeweler, the tailor, the photographer and the caterer?
Colorado Solicitor General Eric Olson said a business can sell any service it wishes, but that service has to be available to everyone. A website can include Christian biblical passages, and a Christmas shop can sell Christmas trees, but neither can refuse to sell their product to Jews or, as in this case, same-sex couples because that would be discrimination based on racial or religious status.
The hypotheticals just kept coming. Justice Barrett asked, what if a newspaper decided to devote its wedding section only to same-sex couples during Gay Pride Month? Would that be illegal discrimination against straight couples? Justice Gorsuch put the dilemma quite succinctly.
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NEIL GORSUCH: Last time around, we had cakes as either expressing the maker’s point of view or the couple’s point of view. And that’s really at the heart of a lot of this.
TOTENBERG: A decision in the case is expected by summer.
Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
