Supreme Court to hear case of web designer who objects to same-sex marriage
By Adam Liptak
The Supreme Court agreed Tuesday to hear an appeal from a Colorado web designer who objects to providing services for same-sex marriages, returning the justices to a battleground in the culture wars pitting claims of religious freedom against laws prohibiting discrimination on the basis of sexual orientation.
The court last considered the clash in 2018, when a similar dispute between a Colorado baker and a gay couple failed to yield a definitive ruling.
The precise question the justices agreed to decide in the new case is “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”
The court will hear the case, 303 Creative LLC v. Elenis, No. 21-476, in its next term, which starts in October. It concerns Lorie Smith, who owns a website design company that says it serves gay customers but intends to limit its wedding-related services to celebrations of heterosexual unions. Smith has said she intends to post a message saying the company’s policy is a product of her religious convictions.
“She cannot create websites that promote messages contrary to her faith, such as messages that condone violence or promote sexual immorality, abortion or same-sex marriage,” Smith’s lawyers told the justices. “Lorie respectfully refers such requests to other website designers.”
A Colorado law forbids discrimination against gay people by businesses open to the public as well as statements announcing such discrimination. Smith, who has not begun the wedding business or posted the proposed statement for fear of running afoul of the law, sued to challenge it, saying it violated her rights to free speech and the free exercise of religion.
Philip Weiser, Colorado’s attorney general, told the justices that there was nothing concrete for the Supreme Court to decide. “The record contains no evidence,” he wrote, “that anyone has asked the company to create a website for a same-sex wedding; that Colorado has threatened enforcement; or that any future wedding website would convey a message that would be attributed to the company.”
In any event, he wrote, the Colorado law was constitutional. “Anti-discrimination laws appropriately apply to prohibit commercial actors from discriminating in commercial transactions,” he wrote, “even though those commercial actors remain free to express their view on such laws in public discourse.”
“Prohibiting companies from displaying what would amount to ‘Straight Couples Only’ messages is permissible,” Weiser added, “because it restricts speech that proposes illegal activity and is therefore unprotected by the First Amendment.”
A divided three-judge panel of the 10th U.S. Circuit Court of Appeals, in Denver, applied the most demanding form of judicial scrutiny to the law but upheld it.
“Colorado has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace,” Judge Mary Beck Briscoe wrote for the majority, adding that the law is narrowly tailored to address that interest.
“To be sure,” Briscoe wrote, “LGBT consumers may be able to obtain wedding-website design services from other businesses; yet, LGBT consumers will never be able to obtain wedding-related services of the same quality and nature as those that appellants offer.”
Briscoe added that “Colorado may prohibit speech that promotes unlawful activity, including unlawful discrimination.”
In dissent, Chief Judge Timothy Tymkovich, citing George Orwell, said, “The majority takes the remarkable — and novel — stance that the government may force Ms. Smith to produce messages that violate her conscience.”
“It seems we have moved from ‘live and let live,’” he wrote, “to ‘you can’t say that.’”
Kristen Waggoner, a lawyer with Alliance Defending Freedom, which represents Smith, said the anti-discrimination law violates the First Amendment’s protection of free speech. “Colorado has weaponized its law to silence speech it disagrees with, to compel speech it approves of and to punish anyone who dares to dissent,” she said in a statement.
Jennifer Pizer, a lawyer with Lambda Legal, a civil rights organization focusing on the LGBTQ community, said in a statement that the Supreme Court should “reaffirm and apply long-standing constitutional precedent that our freedoms of religion and speech are not a license to discriminate when operating a business.”
Lower courts have generally sided with gay and lesbian couples who were refused service, ruling that they are entitled to equal treatment, at least in parts of the country with laws forbidding discrimination based on sexual orientation.
The owners of businesses challenging those laws have argued that the government should not force them to choose between the requirements of their faiths and their livelihoods, citing constitutional protections for free speech and religious liberty.
Smith’s lawyers had also asked the Supreme Court to decide whether the Colorado law violated her right to the free exercise of religion and to consider whether to overrule an important precedent from 1990, Employment Division v. Smith.
In that case, in a majority opinion written by Justice Antonin Scalia, the Supreme Court ruled that neutral laws of general applicability could not be challenged on the ground that they violated the First Amendment’s protection of the free exercise of religion.
That decision, arising from a case involving the use of peyote in Native American religious ceremonies, is unpopular among conservative Christians, who say it does not offer adequate protection to religion, and with some justices. Last year, the court’s three most conservative members — Justices Clarence Thomas, Samuel Alito and Neil Gorsuch — said it was time to overrule the 1990 decision.
“Smith was wrongly decided,” Alito wrote. “As long as it remains on the books, it threatens a fundamental freedom. And while precedent should not lightly be cast aside, the court’s error in Smith should now be corrected.”
In the new case from Colorado, though, the court limited its review to the question of whether the Colorado law violates the First Amendment’s protection of free speech.