Supreme Court to decide case on designer’s right to not create same-sex marriage websites

Case tests line between religious beliefs and LGBTQ rights

Marriage equality supporters hold up balloons that spell "LOVE" outside the Supreme Court as they  wait for the court's decision on marriage equality in 2015. (Bill Clark/CQ Roll Call file photo)
Marriage equality supporters hold up balloons that spell "LOVE" outside the Supreme Court as they wait for the court's decision on marriage equality in 2015. (Bill Clark/CQ Roll Call file photo)
Posted February 22, 2022 at 12:57pm

The Supreme Court will decide whether a Colorado anti-discrimination law violates the free speech rights of a graphic artist who says creating wedding websites for same-sex couples conflicts with her religious views about marriage.

The case marks the first time in four years in which justices will explore the line that anti-discrimination laws draw between religious beliefs and LGBTQ rights when it comes to businesses that serve the general public.

Any decision by the recently expanded 6-3 conservative majority, likely not until next year, could make this a potentially landmark case on a simmering social issue, and some Republican members of Congress had urged the Supreme Court to take up the case.

The question, as the Supreme Court agreed to hear it Tuesday, is whether a state that applies “a public-accommodation law to compel an artist to speak or stay silent” violates the Free Speech Clause of the First Amendment.

Colorado focus

The case centers on Lorie Smith and 303 Creative, the website-design firm she started to get out of the corporate world and get more freedom to promote issues she cares about, including her religious belief that marriage is between one man and one woman, the petition states.

Smith is willing to create custom websites for LGBTQ individuals as long as their message does not conflict with her religious views, and she refers requests for websites that condone violence, abortion or same-sex marriage to other designers, the petition states.

But Smith argues the Colorado Anti-Discrimination Act, known as CADA, blocks her from offering wedding websites, as well as even posting an explanation for the reasons she wouldn’t provide that service to same-sex couples.

Smith sought an injunction in federal court to block enforcement of CADA. Eventually the U.S. Court of Appeals for the 10th Circuit ruled against her, finding that Colorado has a compelling interest in protecting “the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace.”

Smith’s petition argues the 10th Circuit decision “took the extreme position that the government may compel an artist — any artist — to create expressive content, even if that content violates her faith.”

And Smith contends that conflicts with decisions in two other circuit courts, which “means that the First Amendment rights of artists depend on the state in which they live.”

Attorneys for Colorado had urged the Supreme Court not to take up the challenge to the law, which added protections for sexual orientation and gender identity in 2008. They argued that Smith can’t show a credible threat of CADA being enforced against her business and the message of any website is attributable to the customer, not her business.

“The record contains no evidence 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,” Colorado wrote in its brief.

In a press statement about Tuesday’s decision to hear the case, Jennifer C. Pizer, senior counsel with the LGBTQ advocacy organization Lambda Legal, said it was brought by fundamentalist religious groups to turn freedoms of religion and speech into a license to discriminate when operating a business.

“It is time once and for all to put to rest these businesses’ attempts to undermine the civil rights of LGBTQ people in the name of religion,” Pizer said.

Lawmakers weigh in

Texas Sen. Ted Cruz, Colorado Rep. Doug Lamborn and 42 other Republicans in the House and Senate wrote in a brief that the point of applying CADA to Smith was “to force her to conform her speech to the prevailing view.”

“The Tenth Circuit’s reasoning makes clear the true purpose of CADA’s speech compulsions — to compel dissenters to mouth views with which they disagree and to silence opposing viewpoints,” the lawmakers wrote, urging the court to take up the case. “After all, as the Tenth Circuit recognized, same-sex couples have no shortage of alternative options for wedding website designs.”

In 2018, the Supreme Court decided another case about the same Colorado anti-discrimination law, about baker Jack Phillips, the owner of Masterpiece Cakeshop who declined to make a cake for a same-sex wedding because of his religious views.

But that 7-2 opinion, while siding with Phillips, took a narrow approach that focused on how the state treated Phillips. And the opinion made clear that it doesn’t dictate the outcome of future cases that would ask the Supreme Court to weigh religious rights against anti-discrimination laws.

The ideological makeup of the Supreme Court has shifted rightward since then. The 2018 opinion was written by now-retired Justice Anthony M. Kennedy, who wrote the opinions in a series of cases that expanded LGBTQ rights, on a court where conservatives had a 5-4 majority.

Now, conservatives have a 6-3 majority that has flexed its muscles this term and shown a willingness to take on big issues. That includes decisions that allowed Alabama to use its new congressional map for the 2022 election, and left in place a Texas law that sharply curtailed abortion in the state.

The court this term is still deciding cases on abortion and gun rights, expected by the end of the term at the end of June.