The conservative justices, majority within the United States Supreme Court, seemed receptive Monday to the arguments of a creator of Internet site which refuses to conceive some for homosexual marriages.
During a long and sometimes tense hearing, their three progressive colleagues expressed strong objections for fear of opening the door to all kinds of discrimination in the commercial sphere.
If the high court ruled in favor of this trader, “it would be the first time in the history of the Court that a company serving the public would be authorized to refuse to serve a customer on the basis of his race, his sex, or his religion”, notably noted the magistrate Sonia Sotomayor.
However, this is not the first time that the Supreme Court, which recognized the right to same-sex marriage in 2015, has been called upon to arbitrate between the protection of sexual minorities and the freedoms of expression and religion of traders. .
In 2018, she vindicated a Christian pastry chef who refused to bake a wedding cake for a gay couple. But it had based its decision on additional reasons without enacting general principles.
Since then, two new judges, appointed by Donald Trump, have consolidated his conservative majority and the Court could render a judgment with a broader scope by June 30.
“LGBT customers”
The case is brought by a web designer, Lorie Smith, who defines herself as a pious Christian and highlights the artistic dimension of her work to refuse to create sites for gay marriages.
PHOTO ANDREW HARNIK, ASSOCIATED PRESS
Website designer, Lorie Smith
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.
Unlike him, however, she was not solicited by gay clients, nor a fortiori was worried by the authorities. This did not prevent her from attacking the law in court, in a preventive way.
After losing twice, she turned to the Supreme Court.
“Mme Smith has LGBT clients,” his lawyer Kristen Waggoner, also president of the Christian legal group Alliance Defending Freedom, pleaded before the nine wise men.
But “she is against same-sex marriages” and cannot produce “personalized, tailor-made sites” to advertise them.
“Honourable”
The law does not relate to the content of the products, but obliges to offer them to all the customers, retorted the lawyer of Colorado, Eric Olson.
For him, M.me Smith could very well decorate his websites with biblical messages about marriage “between a man and a woman”, but cannot refuse to sell them to homosexual couples. Likewise, “a store can only sell Christmas decorations, but cannot refuse Jewish customers,” he explained.
But several conservative judges have defended M’s point of view.me Smith.
Judge Amy Coney Barrett noted that she could refuse to produce marriage sites for heterosexuals who are divorced or have committed adultery. “It’s the message, not the couple’s sexual orientation, that matters,” she said.
Validating the Colorado law would be tantamount to forcing certain businesses to “espouse speeches they despise”, added his colleague Samuel Alito.
“There are honorable people who oppose same-sex marriage,” he added, refusing any comparison with the perpetrators of racist discrimination.
“Interracial Marriages”
African-American Judge Ketanji Brown Jackson, however, noted that “historically, opposition to interracial marriages and integration have often been justified on religious grounds”.
And to ask if a mall photographer, intent on recreating the 1950s vibe, might be allowed to refuse to sit black children on Santa’s lap?
“What if someone thinks disabled people shouldn’t get married?” Where is the line? added Sonia Sotomayor.
Conservative judge Brett Kavanaugh wanted to reconcile the parties: “it looks like you agree on the main principles: hairdressers, gardeners, plumbers […] can’t invoke the First Amendment to decline gay marriages, but that’s different for artists. »
For him, the Court could therefore content itself with answering a limited question: “Are website designers more like restorers or publishers? »