Last week, the Supreme Court heard argument in 303 Creative LLC v. Elenis, the latest in a series of wedding vendor cases that have been percolating in the courts. These cases involve small businesses that offer services for weddings—bakers, florists, caterers, web designers, and others. The owners, typically conservative Christians, decline to provide services for same-sex weddings because, they argue, doing so would require them to express approval of conduct they reject on religious grounds. By declining, though, the businesses often run afoul of state anti-discrimination laws, which prohibit businesses open to the public, so-called “public accommodations,” from denying service based on customers’ status—more precisely, certain protected status categories, including, nowadays, sexual orientation.
These cases often deal with the question of how to balance commitments to free speech and free exercise with equality in the marketplace. The Supreme Court addressed this four years ago in Masterpiece Cakeshop, in which Colorado punished a Christian baker who declined to design a cake for a same-sex wedding. The Court ruled for the baker but issued a narrow decision that depended greatly on Colorado authorities’ disparaging remarks about the baker’s religious beliefs. The Court will have a hard time avoiding a broader ruling in 303 Creative—though some of the justices may try. Although it’s not clear what the ultimate reasoning will be, based on last week’s argument, it seems likely the Court will come down on the side of free speech.
303 Creative involves a web designer in Colorado, Lorie Smith, who would like to offer wedding services. Smith willingly serves customers regardless of their sexual identity—that’s not in dispute. When it comes to weddings, though, she intends to create websites only for opposite-sex weddings, since she rejects same-sex marriage on religious grounds. She says she will refuse to create sites for same-sex weddings regardless of the precise message requested and regardless of whether the customers are the same-sex couple, heterosexual friends, or even “a disinterested wedding planner requesting a mock-up.”
Smith has not yet offered any wedding services because she believes that if she does, Colorado will prosecute her for violating the state’s public accommodations law, CADA, which prohibits discrimination based on sexual orientation. Instead, she has brought what is known as a pre-enforcement action, seeking an advance ruling that prosecution would be unconstitutional. In the lower courts, she argued that prosecution would violate her First Amendment rights to free speech and free exercise. The lower courts ruled against her on both grounds, and she appealed to the Supreme Court, which agreed to consider only her free speech claim.
A pre-enforcement challenge is always tricky because the record is typically quite sparse. Here, for example, we don’t know precisely what the facts in Smith’s case will be, because Colorado has not yet prosecuted her. At Monday’s argument, a few justices, including Clarence Thomas, Elena Kagan, and Ketanji Brown Jackson, wondered whether Smith brought her case prematurely. But Colorado has a track record of enforcing CADA quite aggressively—see Masterpiece Cakeshop and its aftermath—and the Court seems willing to decide Smith’s case on the record as it now stands.
Resolving her claim requires the Court to answer a basic, conceptual question under the Court’s precedents: As applied to Smith’s web design business, does CADA regulate speech or conduct? If the former, CADA would have to satisfy a test known as “strict scrutiny.” Colorado would have to show that prosecuting Smith was “necessary” to promote a “compelling” state interest. By contrast, if the law regulates conduct and only incidentally affects speech, Colorado would have to satisfy a more lenient test known as the O’Brien standard. Colorado would have to show only that CADA “furthered” an “important” or “substantial” state interest unrelated to the suppression of speech.
At last week’s argument, Colorado’s lawyer argued that CADA is directed principally at conduct. Were Colorado to prosecute Smith, he explained, it would be because Smith had discriminated against customers based on sexual orientation, not because she expressed an opinion on same-sex marriage. Smith could not be required to praise same-sex marriage expressly—but she would have to design websites for all comers. Appearing on behalf of the Biden Administration as amicus curiae, Deputy Solicitor General Brian Fletcher agreed. Declining categorically to design websites for same-sex weddings, he told the justices, would be “a form of status-based discrimination properly within the scope of public accommodations laws.”
This argument appeared to persuade progressives like Justice Sonia Sotomayor—but not the Court’s conservatives. For example, Justice Neil Gorsuch stressed that Smith had said repeatedly that she would “serve everyone,” straight, gay, or transgender, and would decline to design websites for same-sex weddings no matter who requested them. She objected to expressing a message with which she disagreed, not to serving customers of different sexual identities. When it came to designing wedding websites, Gorsuch emphasized, “the question” for Smith wasn’t “who,” but “what.”
Based on Monday’s argument, it seems that most justices agree with Gorsuch that CADA regulates speech. As a result, the law must satisfy strict scrutiny, which is typically very hard to do. True, the lower court ruled that Colorado’s compelling interest in ending discrimination against LGBT persons in public accommodations justified imposing a burden on Smith in this case, but the Supreme Court will likely disagree—not because ending discrimination is unimportant, but because the state could tailor its law more narrowly to avoid applying it to businesses like 303 Creative.
For example, Justices Thomas and Kavanaugh hinted that CADA could be limited to traditional public accommodations whose services are less bound up with speech than web design: railroads, restaurants, and so on. Chief Justice Roberts wondered whether 303 Creative should be considered a public accommodation at all, since, like artists, Smith retains a great deal of subjective discretion over her projects.
If the justices do ultimately decide in favor of free speech, the ruling will be consistent with the Court’s general approach when it comes to LGBT issues. In cases like Obergefell and Bostock, the Court has gone along with cultural trends. But the Court also seems to want to carve out space for Americans who continue to hold traditional views about marriage and sexuality. A ruling that Colorado has an interest in preventing discrimination against LGBT persons, but that Smith has a right to express, or not express, her own beliefs in her work, might be exactly the balance the Court wishes to strike.
The Court’s decision is expected by next summer.
Mark Movsesian is the Frederick A. Whitney Professor and Co-Director of the Center for Law and Religion at St. John's University.
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