The Supreme Court’s recent ruling in favor of a Christian web designer who opposed making same-sex wedding websites didn’t settle everything for religious objectors, according to legal experts who say bakers, florists and others may still have to battle in court to stay out of LGBTQ celebrations.
Web designer Lorie Smith said her websites are speech and so her decisions about creating them are protected by the First Amendment.
She challenged a Colorado public accommodations law that would have penalized her if she chose only to create wedding websites for heterosexual couples. The law protects certain groups from discrimination, including that based on sexual orientation.
The high court agreed with Ms. Smith in a 6-3 ruling in June, saying artists can refuse business that would force them to violate their beliefs, reasoning the First Amendment trumps public accommodation laws.
However, the case turned on whether creative businesses are “speaking” when they take a job for clients or whether they are providing a service.
That means bakers, florists and potentially other wedding-related industries may still have to go to court to object to participating in LGBTQ ceremonies.
“Courts will now have to determine what kinds of business and professional activities qualify as expressive activity,” said Curt Levey, president of the Committee for Justice. “The court mentioned artists, movie directors and speechwriters, but outside of those professions, there’s plenty of room for disagreement.”
Mr. Levey said the Colorado attorney general and officials in other blue states may test the boundaries of the high court ruling in favor of Ms. Smith.
Adam Feldman, a Supreme Court scholar and creator of EmpiricalSCOTUS, said courts will be weighing what exactly is expressive or creative enough to object to LGBT weddings. He said there will need to be more clarity.
“The justices like to create clear lines in some cases,” Mr. Feldman said. “But sometimes they do things incrementally and that is what I see in this case.”
All states protect against discrimination on the basis of race, gender and religion, according to the National Conference of State Legislatures. But they vary on protections for other categories such as disability, age discrimination and sexual orientation.
After Ms. Smith’s win, Colorado Attorney General Philip J. Weiser vowed to hold accountable those who are aiming to “roll back” anti-discrimination laws.
And it’s not the first time Colorado’s law has been reviewed by the high court. Five years ago, the Supreme Court heard a case after the state Civil Rights Commission penalized baker Jack Phillips for declining to bake a wedding ceremony cake for a same-sex couple.
The commission said Mr. Phillips was refusing a service in violation of Colorado’s public accommodation law. Mr. Phillips argued that his cakes were First Amendment speech and that forcing him to create one for a same-sex wedding violated his rights.
The Supreme Court ruled that the commission showed undo animosity toward Mr. Phillips and sent the case back to be reheard in a lower court, but the justices shied away from a big ruling on constitutional principles.
The issue had percolated in the years since without further guidance from the high court until Ms. Smith’s case.
Kristen Waggoner, an attorney with Alliance Defending Freedom who represented Mr. Phillips and Ms. Smith, said last month’s ruling will help the baker as he continues to fight in court to create custom cake designs.
“States like Colorado cannot eliminate beliefs they do not like,” Ms. Waggoner said. “It’s a broad ruling. We are thrilled.”
ADF also cites Ms. Smith’s victory in pending circuit court cases involving photographers in Kentucky and New York.
Mr. Weiser’s office didn’t immediately comment on Mr. Phillips’ case or the impact of Ms. Smith’s victory.
Mr. Phillips’ litigation is pending after he also declined to create a custom cake to celebrate a gender transition — bringing more scrutiny to his court fight.
He’s not the only baker who has been taken to court.
Melissa Klein and her husband, Aaron, owned Sweet Cakes by Melissa in Gresham, Oregon. They had served all customers without discrimination until 2013, when they were approached by repeat customers for a custom cake to celebrate the wedding of a lesbian couple.
They refused, citing the Bible’s teaching against homosexuality and their faith. As a result, the couple filed a complaint with the state of Oregon, which fined them $135,000.
After the Supreme Court handed down its ruling for Ms. Smith, the justices told the lower court in the Klein litigation to reconsider that dispute.
Florists, too, have been caught up in the First Amendment versus LGBTQ rights battle.
Florist Barronelle Stutzman was sued by a gay couple in Washington state after she refused to design arrangements for their ceremony. She settled the dispute after years of litigation, retiring and paying the men $5,000.
Carolyn Shapiro, co-director of the Institute on the Supreme Court of the United States at Chicago-Kent College of Law, said the next step is for courts to explore whether cakes and flowers qualify as expressive speech.
“We are definitely going to see other types of businesses in court,” Ms. Shapiro said. “A lot of those questions are completely unresolved by [Ms. Smith’s] case.”
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.