Supreme Court expected to favor companies in bias cases, but likely effect of ruling unclear

The US Supreme Court should rule in favor of a website designer who wants to refuse to provide marriage-related services to same-sex couples, according to many experts.

But the likely business-friendly decision in 303 Creative LLC; Lorie Smith vs. Aubrey Elenis could take many different forms, and it is uncertain whether it would have a significant practical effect on employers’ anti-discrimination policies.

Ms Smith, based in Littleton, Colorado, who has not begun offering marriage-related services, had filed a ‘pre-enforcement challenge’ to Colorado’s anti-discrimination law, enacted in 2008, which limits the ability of state enterprises to refuse to provide services based on a customer’s sexual orientation. She asks for permission to deny services to same-sex couples because of her religious beliefs.

In its July 2021 decision in the case, the 10th United States Circuit Court of Appeals in Denver upheld a lower court ruling against Ms Smith. He ruled that the First Amendment’s free speech guarantee “does not protect the appellant’s proposed denial of services.”

The U.S. Supreme Court accepted the case for trial in February, and oral arguments, which have not yet been scheduled, are expected to take place later this year.

The case is seen as a follow-up to the 2018 U.S. Supreme Court ruling in Masterpiece Cakeshop Ltd. et al. vs. Colorado Civil Rights Commission et al.in which she ruled in favor of a bakery owner who refused to bake a wedding cake for a same-sex couple.

The narrow drafting and on a case-by-case basis Masterpiece The decision was based on comments made during the Colorado Civil Rights Commission hearing, including one in which a commissioner allegedly disparaged the bakery owner’s religious beliefs.

the Masterpiece The decision “avoided the direct question of whether or not business owners can refuse goods and services under anti-discrimination laws,” said Vincent M. Rizzo, a partner at Hinshaw & Culbertson LLP in Chicago.

Mr. Rizzo said that in his 303 Creative The court’s decision will focus on “the more apt question of how to approach non-discrimination laws and the interaction with religious expression.”

One of the questions raised by the case is whether Ms Smith’s free speech rights would be violated by forcing her to set up a same-sex marriage website, said David S. Flugman, a partner at Selendy Gay Elsberg PLLC in New York.

According to Lisa A. McGlynn, a partner at Fisher & Phillips LLP in Tampa, Fla., the court could decide one of three ways: argue that Colorado’s law is constitutionally problematic, uphold the law, or take more of a Masterpiece-like the procedural approach and the rule, there has been no harm yet because the business is not operational.

Many believe the decision will be in favor of the plaintiff, given the court’s six conservatives. Since the 2018 decision, Trump-appointed Brett Kavanaugh replaced centrist Anthony Kennedy and Amy Coney Barrett, also Trump-appointed, replaced liberal Ruth Bader Ginsburg as Associate Justices of the Supreme Court.

“The bigger question is how will they get there and what scope of rights the court is likely to say need to be protected,” said Christopher Jackson, a partner at Holland & Hart LLP in Denver.

Paul E. Starkman, a fellow at Clark Hill PLC law firm in Chicago, said, “I guess they want to create a business rules exception” to LGBTQ anti-discrimination rules based on the right to free speech. religious people.

A ruling in favor of Ms Smith would have the most immediate impact in Colorado, but would set a compelling precedent in other states that have similar laws, he said.

Such a move would create an issue with respect to federal protections as well as with respect to states that have anti-discrimination laws based on sexual orientation, Mr. Starkman said.

A decision in favor of the plaintiff would mean that business owners with religious views could “manage their businesses in a way that allows them to not serve entire and significant categories of people based on their religious views,” it said. Ashley I. Kissinger, attorney at Ballard. Spahr LLP in Boulder, Colorado.

However, “it’s hard to imagine this case would require (employers) to change anything, regardless of the outcome,” said Nicholas J. Nelson, attorney at Faegre Drinker Biddle & Reath LLP in Minneapolis. Companies are already complying with non-discrimination laws, he said.

With so many state and local laws already protecting the LGBTQ community, “the impact of this, in reality, in the workplace would be very, very small,” said Eric B. Meyer, partner at Fisher Broyles LLP in Philadelphia.

Reactions can be “state specific,” Ms McGlynn said. While some states may respond by seeking more LGBTQ protections, in others there may be legislation that supports Ms. Smith’s position, and the matter may be decided by federal law.


Web designer seeks permission to ban same-sex marriages

Web designer Lorie Smith is seeking legal approval from the United States Supreme Court to run a wedding services business she has yet to start.

His lawsuit is a “pre-enforcement challenge” to Colorado’s anti-discrimination law, which prohibits commercial discrimination based on sexual orientation and can result in fines of $50 to $500 for each violation. Ms Smith said she did not want to offer her services to same-sex married couples.

303 Creative is a for-profit graphic design and website company, of which Ms. Smith is the founder and sole member owner, according to the July 2021 decision of the 10th U.S. Circuit Court of Appeals in Denver in 303 Creative LLC; Lori Smith v. Aubrey Elenis, et al.

She is “willing to work with all people, regardless of sexual orientation,” as well as create graphics or websites for lesbian, gay, bisexual or transgender clients, depending on the decision.

“Ms. Smith sincerely believes, however, that same-sex marriage is in conflict with the will of God,” and while she intends to offer marriage websites that celebrate heterosexual marriages, she does not plan to do the same for same-sex marriages, according to the ruling.She also plans to post a statement on her website explaining her religious objections.

Ms Smith is represented by the Scottsdale, Arizona-based Alliance Defending Freedom, which also represented baker Jack Phillips in Masterpiece Cakeshop Ltd. et al. vs. Colorado Civil Rights Commission et al.the first case based on Colorado’s anti-discrimination law.

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