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Refusal to Serve Gay Bride and Groom: Act II at the U.S. Supreme Court

Refusal to serve gay bride and groom: Act II at the Supreme Court of ÉUnited States


Can US merchants refuse to serve gay customers in the name of their religious beliefs? The Supreme Court, firmly rooted in conservatism, reopens this ultra-sensitive debate on Monday in a case with a strong taste of “deja vu”. 

In 2018, the high court had kicked in a case brought by a Christian pastry chef who refused to make a wedding cake for a gay couple. She had agreed with him on additional grounds without enacting broad generalizable principles.

The question, very divisive in the United States, did not take long to emerge again, posed this time by a designer of websites: Lorie Smith, who defines herself as a devout Christian, does not want to create web pages for same-sex marriages.

Like pastry chef Jack Phillips, she works in Colorado, where a law has prohibited discrimination on the basis of sexual orientation since 2008 and can impose penalties of up to $500 on offenders.

Unlike him, however, she was not solicited by homosexual clients nor, a fortiori, was she worried by the authorities. That didn't stop her from taking the Colorado law to court preemptively.

After losing at first instance and on appeal, she turned to the Supreme Court, which agreed to intervene by limiting the issue to the freedom of expression of traders whose work has an artistic dimension.

“Flowers, photos, costumes…”

“Lorie is ready to make custom sites for everyone, including those who call themselves LGBT, as long as the message does not conflict with his opinions,” his lawyers wrote in a statement sent to the Court before the hearing.

But “forcing artists, such as painters, photographers, authors, graphic designers or musicians to transmit messages which violate their convictions flout the first amendment of the Constitution”, guarantor of the freedoms of expression and religion, have- they added.

The law does not address the content of marketed products, but mandates that they be offered to all customers, the Colorado attorneys countered in their own briefing.

For them, Mrs. Smith could very well adorn her websites with biblical messages about marriage “between a man and a woman”, but cannot refuse to sell them to homosexual couples.

They point out that many goods “have deep meaning for buyers: flowers for a wife's funeral, a family photo for the birth of a baby, a suit for a new job”, and that a refusal to sell is not trivial.


Reflecting the deep divisions of American society, many actors have joined the procedure in support either of Ms. Smith (elected Republicans, religious groups, conservative associations), or in Colorado (elected Democrats, defenders of minorities, etc.).

The US government, which under Donald Trump had supported pastry chef Jack Phillips, is defending Colorado's position this time. Its law “does not require adopting or relaying a message prescribed by the authorities”, writes the representative of the Democratic administration of Joe Biden.

Noting that many businesses have a creative dimension, minority advocacy groups have called on the High Court — which legalized same-sex marriage in 2014 — to reject Ms Smith's arguments.

Otherwise, ” architects could refuse to design houses for black families, pastry chefs to prepare birthday cakes for Muslim children, florists to provide bouquets for the funeral of a homosexual person”, enumerated David Cole, director of the ACLU, during a presentation to the press.

But these associations are worried “about the aggressive posture of the Court”, in the words of Mary Bonauto, head of the GLAD association, who defends the rights of LGBT people.

Revised by Donald Trump, it has six out of nine conservative magistrates, who recently offered resounding victories to the religious right, in particular by dynamiting the right to abortion.< /p>

The Supreme Court must render its decision in Ms. Smith's case by June 30, 2023.

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