High Court Rules In Favor of Web Designer In Landmark Free Speech Case

Americans 'are free to think and speak as they wish, not as the government demands,' Gorsuch writes

Supreme Court justices Neil Gorsuch and Brett Kavanaugh / Getty Images
June 30, 2023

The Supreme Court on Friday ruled in favor of a Colorado web designer who refused to design gay wedding websites, writing that the First Amendment prohibits states from compelling artists to create "expressive designs speaking messages with which the designer disagrees."

In a 6-3 decision authored by Justice Neil Gorsuch, the Court ruled Colorado cannot compel website designer Lorie Smith to create a website celebrating same-sex marriage. The Court ruled websites are artistic expressions and that a law forcing her to design same-sex wedding announcements that clash with her religious beliefs infringed on her right to free expression.

"The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands," Gorsuch wrote for the majority.

In a dissent joined by Justices Ketanji Brown Jackson and Elena Kagan, Justice Sonia Sotomayor took issue with the majority's reasoning.

"As I will explain, the law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment," Sotomayor wrote. "Our Constitution contains no right to refuse service to a disfavored group. I dissent."

The decision clarified questions surrounding religious liberty and free speech left by the Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a similar case involving baker Jack Phillips’s refusal to bake a cake celebrating a same-sex wedding. In 2018, the Court ruled in Phillips’ favor but sidestepped the fundamental First Amendment issues in the case. Justice Anthony Kennedy, writing for the majority, focused on the Colorado anti-discrimination board’s animus toward Phillips, instead of his rights to free exercise and free expression.

Smith's case originated in the same state, challenged the same law, and was argued by the same legal representation, the Alliance Defending Freedom.

What changed was the ideological makeup of the Court. Although Masterpiece Cakeshop was a 7-2 decision, three of the conservative justices—Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch—argued in concurring opinions that the Court should have based its ruling on broader constitutional principles. With the replacement of Justice Brett Kavanaugh by Justice Kennedy later that year, and the addition of Justice Amy Coney Barrett in 2020, the conservative justices gained the votes to form precedent on free speech grounds.

The decision is a victory for free speech advocates, Kristen Waggoner, who represented Smith in oral arguments at the High Court, said after the ruling.

"​​The government should no more censor Lorie for speaking consistent with her beliefs about marriage than it should punish an LGBT graphic designer for declining to criticize same-sex marriage," Waggoner tweeted Friday.

Sotomayor further argued that the Court disregards the value of public accommodation law.

"The unattractive lesson of the majority opinion is this: What’s mine is mine, and what’s yours is yours," Sotomayor wrote. "The lesson of the history of public accommodations laws is altogether different. It is that in a free and democratic society, there can be no social castes."

Gorsuch wrote that Sotomayor’s dissent "reimagines the facts of this case from top to bottom" and that it is "difficult to read the dissent and conclude we are looking at the same case."

"In some places, the dissent gets so turned around about the facts that it opens fire on its own position," Gorsuch said.

Sotomayor cites the 2016 Pulse nightclub shooting as an example of how "a social system of discrimination created an environment in which LGBT people were unsafe." But sources across the political spectrum eventually concluded the Pulse nightclub shooter was driven by a desire to seek revenge for America's involvement in the Middle East, not anti-gay hatred.

This is a breaking story and will be updated with further developments.