The designer and her supporters say ruling against her would force artists – from painters and photographers to writers and musicians – to do work that goes against their faith. Her opponents, meanwhile, say that if she wins, a number of businesses will be able to discriminate, refusing to serve black customers, Jews or Muslims, interracial or interfaith couples or immigrants, among others. The issue of where to draw the line dominated questions early in Monday’s high court hearings. Judge Ketanji Brown Jackson asked whether a photo studio in a mall could refuse to take photos of black people in Santa’s arms. “Their policy is that only white kids can be photographed with Santa that way, because that’s how they see the Santa scenes that they’re trying to portray,” Jackson said. Justice Sonia Sotomayor repeatedly pressed Kristen Waggoner, the lawyer for web designer Lorie Smith, on other charges. “How about people who don’t believe in interracial marriage? Or for people who don’t think disabled people should get married? Where’s the line?’ Sotomayor asked. The case comes at a time when the court is dominated by 6-3 conservatives and after a series of cases in which justices have sided with religious plaintiffs. It also comes as, across from the court, lawmakers in Congress finalize a landmark bill to protect same-sex marriage. The bill, which also protects interracial marriage, has steadily gained momentum since the high court’s decision earlier this year to end constitutional protections for abortion. This decision overturning Roe v. Wade in 1973 raised questions about whether the court — now more conservative — might also overturn its 2015 ruling declaring a nationwide right to same-sex marriage. Justice Clarence Thomas specifically said the decision should also be reconsidered. The case before the high court on Monday involves Smith, a graphic designer and web designer in Colorado who wants to start offering wedding websites. Smith says her Christian faith prevents her from creating websites celebrating same-sex marriage. “Ma’am. Smith believes that opposite-sex marriage honors the Bible and same-sex marriage is contrary to that,” Wagoner told the judges. But that could land her in trouble with state law. Colorado, like most other states, has what’s called a public accommodation law that says if Smith offers matrimonial websites to the public, she must provide them to all customers. Businesses that violate the law can be fined, among other things. Five years ago, the Supreme Court heard a different challenge involving the Colorado law and a baker, Jack Phillips, who objected to designing a wedding cake for a gay couple. However, that case ended in a narrow decision and led to the issue being returned to the high court. Waggoner, of the Alliance Defending Freedom, also represented Phillips. Like Phillips, Smith says her objection is not working with gay people. He says he would work with a gay client who needed help with graphics for an animal rescue shelter, for example, or to promote an organization that serves children with disabilities. But he opposes creating messages that support same-sex marriage, just as he wouldn’t create a website for a couple who met while both married to other people and then divorced, Wagoner said. Smith says the Colorado law violates her free speech rights. Her opponents, including the Biden administration and groups like the American Civil Liberties Union, the NAACP Legal Defense & Educational Fund, disagree. Twenty mostly liberal states, including California and New York, support Colorado, while another 20 mostly Republican states, including Arizona, Indiana, Ohio and Tennessee, support Smith. The case is 303 Creative LLC v. Eleni, 21-476.
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