This feature of the case creates some complications for the justices because courts often rely on the specific factual details in a dispute to reach a decision. But in this case, there are no actual wedding websites designed by Smith for the court to review.

Instead, Smith provided a mock-up of a sample wedding website. At least some of the justices suggested this didn’t provide enough information.

Justice Elana Kagan, for example, asked several hypothetical questions dealing with specific content that might be provided on a wedding website, and she suggested that how she would rule in a case like Smith’s might change depending on the details.

If the justices conclude that they do not yet have enough information about Smith’s web design services, they may not rule in her favor, while leaving open the possibility that they might side with her in a future case.

Many of the justices’ comments suggest that a key question facing the court is whether refusing to make custom wedding websites for same-sex couples is discrimination based on the content of the message or based on someone’s protected status. In this case, that protected status is sexual orientation.

Imagine someone is selling custom-designed welcome mats, for example. If that seller decides that they will only sell welcome mats with messages like “Welcome,” and not others, like “Get off my lawn,” then they are discriminating on the basis of message. This is a constitutionally permissible kind of discrimination.

On the other hand, if that seller decides that they will only sell welcome mats to certain people – for example white people, or heterosexual people – then this is discrimination on the basis of a protected status. Colorado’s discrimination law doesn’t permit this kind of status discrimination.

The question for the justices is, what kind of case is Smith’s?

Justice Neil Gorsuch, one of the conservative majority, suggested that both the defendant and plaintiff agreed that discrimination based on protected status would not be covered by the First Amendment’s free speech provision, but that discrimination based on the content of the message would be constitutional.

Gorsuch’s questions and comments suggest that he views Smith’s refusal to provide wedding websites to same-sex couples as about the message, not the status.

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