The broad wording of a recent U.S. Supreme Court ruling involving a Colorado web designer makes it possible for the decision to be used as a license to discriminate, a Memphis civil rights attorney says.

In a June 30 decision, the high court ruled in favor of Lorie Smith, a Christian web designer who refused to create wedding websites for same-sex couples. The court found that her business, web design, was a creative expression and therefore protected by First Amendment rights.

The decision is widely considered a setback for gay rights.

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“It’s complicated because the court has framed this as being about free speech, right?” Melissa Stewart, the Memphis-based attorney, said. “The court said because the services are customized, so expressive, it qualifies as speech. And therefore, the government can’t compel somebody to say something that they don’t want to say.”

Smith said she wanted to expand her services to wedding websites, but only for heterosexual couples. She included a page on her website explaining why she would not create websites for same-sex couples.

Colorado is one of the 21 states with laws barring discrimination based on sexual orientation.

“All manner of speech — from ‘pictures, films, paintings, drawings, and engravings,’ to ‘oral utterance and the printed word’ — qualify for the First Amendment’s protections,” the court’s decision reads. “No less can hold true when it comes to speech like Ms. Smith’s conveyed over the Internet.” 

The lawsuit was filed by Smith preemptively, essentially on a hypothetical basis, since Smith was not designing wedding websites at the time and was only looking to expand into the service.

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Smith was allegedly asked to make a website for a wedding involving a gay couple in 2016, but that assertion was not brought into court documents until 2017. However, the man identified as “Stewart” who supposedly inquired about Smith’s services says he never reached out to her. He says, in fact, that he is heterosexual and has been married to a woman for 15 years.

That fact does not affect the court’s ruling, however.

“Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class,” Justice Sonia Sotomayor wrote in her dissent.

Some, like Stewart, worry the ruling would set a precedent that would open the door to discriminate against other minority groups.

“The court did not distinguish this decision from issues of race, which means this decision allows a business owner who, for example, creates wedding websites to refuse to serve interracial couples. Because people have had religious objections to interracial marriage for centuries,” Stewart said.

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“When I started reading the opinion, I expected at least some sort of half-hearted attempts from the courts to distinguish this from race. And they didn’t even try ... it’s clear to me that the court understands the implications of this.”

Stewart said the ruling is essentially allowing people to put up signs on their websites saying, “No gays allowed” and that the decision is a reversal of the court’s prior history.

“All of these cases about segregation were coming down from the Supreme Court. Business owners all across the country argued that integration would force business owners to, just as this woman is claiming, defy their beliefs. It would force them to associate with people they didn’t want to associate with,” Stewart said.

“And again and again and again in the last 50-something years, the Supreme Court has rejected that reasoning until last week (when) ... the Supreme Court decided to accept that reason for the first time.”

The decision is a major reversal of the two decades of progress for LGBTQ+ rights, including the 2015 decision legalizing gay marriage and the 2020 decision on gay, lesbian and transgender employment discrimination.

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In recent years, the court has ruled in favor of religious plaintiffs, however, including a 2018 case involving a wedding cake baker who refused services for gay weddings. In that case, the plaintiff won a limited ruling. Also, a high school football coach who prayed on fields after games won his case.

“I don’t see how it doesn’t give businesses the right to discriminate on the basis of race or sex — any other protected category that you can think of,” Stewart said. “Unfortunately, I think we’re going to start seeing a lot more of that. I wouldn’t be terribly surprised if in the next couple of years, we start to see cases brought specifically about those issues.”