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Jack Phillips, the Colorado baker who declined to make custom cakes for gay weddings, won at the Supreme Court in 2018, but that was a limited decision based on the animus of the state Civil Rights Commission. A factor that made a broader ruling complicated was whether Mr. Phillips’s cake design qualified as speech. If yes, Justice
Elena Kagan
asked at oral argument, what about the work of a stylist whose free expression is in “creating a wonderful hairdo?”
On Monday the Justices will take up 303 Creative v. Elenis, another religious objection to Colorado’s antidiscrimination law, but this time there’s no hand-wringing over whether the First Amendment covers baked goods. Lorie Smith designs websites. She wants to offer custom wedding websites, while saying upfront that she will decline to work on same-sex weddings, because doing so “would compromise my Christian witness.”
The design of wedding websites qualifies as “pure speech,” the 10th Circuit Court of Appeals held last year. Yet the panel ruled against Ms. Smith. Colorado’s law says companies that are open to the public can’t refuse customers based on sexual orientation. The state’s “interest in ensuring equal access to the commercial marketplace,” the court said, trumped Ms. Smith’s liberty claims. But a keystone in its ruling was the idea that Ms. Smith has a monopoly on websites in the style of Ms. Smith. This can’t be right, or else every artist is a monopoly of one.
Colorado’s brief argues that its antidiscrimination law targets “sales discrimination” and nothing more. “The Act does not, as the Company claims, compel a Hindu calligrapher to ‘write flyers proclaiming, “Jesus is Lord,”’ the state insists. “It requires only that if the calligrapher chooses to write such a flyer, they sell it to Christian and Hindu customers alike.”
The state’s conceit here is that Ms. Smith may define her service however…
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