Justice Gorsuch slammed the State of Colorado on Monday for forcing a Christian baker to undergo a “reeducation program” after he refused to create a custom cake celebrating a same-sex marriage on the grounds that it violated his religious convictions.
The comment came during opening arguments before the Supreme Court on a case involving a Christian web designer who said she would refuse to produce a personalized website advertising a same-sex wedding if a client came to her seeking such a site.
In 2018, the Court handed a narrow victory to cake artist Jack Phillips in Masterpiece Cakeshop, ruling that the Colorado Civil Rights Commission acted with unusual religious animus in 2012 when it ordered Phillips and his staff to receive anti-discrimination training. However, the decision did not make a major judgment on the compelled speech issue at the heart of the case, which the Court is finally expected to address in the 303 Creative case currently before it.
“Mr. Phillips had to go through a reeducation program, did he not?,” Gorsuch asked Colorado solicitor general Eric Olson. He retorted that it was actually training to educate him about Colorado law.
“Some would call that a reeducation program,” Gorsuch said.
“I strongly disagree,” the defense attorney replied.
“Isn’t religious belief a protected characteristic?,” Gorsuch asked, to which Olson conceded, “yes.”
Phillip’s punishment from the Colorado commission also included a requirement that he submit quarterly reports on his company’s compliance progress.
On Monday, Kristin Waggoner, the Alliance Defending Freedom attorney representing Christian website designer Lorie Smith, noted that because of Colorado’s “aggressive enforcement,” her client’s “speech has been chilled for six years.”
Colorado argued that Smith’s website creation qualifies as a public accommodation, binding her to serve every member of the community, including same-sex couples, even if it offends her conscience. The defense drew a connection between opposition to interracial marriage and opposition to same-sex marriage, arguing that a ruling in Smith’s favor could set a precedent under which vendors could refuse service based on race.
Waggoner contended that Smith’s websites are customized to fit each individual customer and include an expressive message. Regardless of how ambiguous and general the format and information presented on the site is, a pro-same sex marriage message would be embedded in a site made for a gay couple, she argued.
Artists like Smith should not be coerced to curate a product for a same-sex marriage but selling a pre-existing product off the shelf is different, Waggoner clarified.
“The compelled speech doctrine no longer applies once you’ve entered the product into a stream of commerce,” she said.
“What you’re saying is ‘I want to give gay couples a limited menu’,” Justice Sotomayor retorted.
Probed by Justice Amy Coney Barrett, Waggoner surmised that her client would reject requests to publish sites that include content contradicting her strongly held religious beliefs, possibly including sites designed for a formerly divorced couple or a couple indifferent to the meaning of marriage.
“It’s not about sexuality. It’s about the message,” Waggoner declared.