Free Speech vs. Nondiscrimination: The Supreme Court Must Find a Middle Ground

Now pending before the U.S. Supreme Court: Can a private business be compelled to design a website for a gay wedding?Lorie Smith runs 303 Creative, a website design firm she’d like to expand to include wedding websites — but not for same‐​sex weddings, which she fervently opposes. In 2021, a federal appeals court rejected Smith’s challenge to Colorado’s Anti‐​Discrimination Act, which bars businesses open to the public from bias toward certain groups, including gays. Smith had argued website design is a form of expressive speech, protected by the First Amendment.The court agreed that her creations qualified as speech but held the law was nonetheless warranted to ensure that LGBTQ customers have access to the unique services that Smith would provide — an odd justification given more than 700,000 same‐​sex weddings in the United States without a single case documenting an inability to obtain a customized website.