Analysis: Opinions differ on Supreme Court 1st Amendment case

  • by Lisa Keen
  • Thursday July 6, 2023
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The U.S. Supreme Court ruled that a website designer has a First Amendment right to discriminate against same-sex couples for her wedding website business. Photo: Fred Schilling, Collection of the Supreme Court of the United States
The U.S. Supreme Court ruled that a website designer has a First Amendment right to discriminate against same-sex couples for her wedding website business. Photo: Fred Schilling, Collection of the Supreme Court of the United States

Some believe the U.S. Supreme Court's decision June 30 in 303 Creative v. Elenis may be one of the most consequential in LGBTQ legal history — a kind of "separate but equal" pronouncement on how the courts should treat LGBTQ people under the law. Others see a narrow injury to the right of LGBTQ people to equal protection of the law and one that will come into play very rarely.

The actual consequences will likely take many years to realize. That was the case with the notorious and widely harmful 1986 decision in Bowers v. Hardwick. The 5-4 decision in Bowers said states could prohibit same-sex sexual relationships, and it was wielded against LGBTQ people both legally and socially. It took 17 years to overturn.

During that time, seven of the nine justices who were on the high court and voted in Hardwick left the bench, including three of the five who had voted to allow bans on same-sex relationships. One of the five, Justice Sandra Day O'Connor, changed her mind. So, when the vote on so-called sodomy laws came up again, in Lawrence v. Texas in 2003, the vote was 6-3 to strike down such bans.

Twenty years have passed since Lawrence, and only one justice who was on the bench in 2003 is still there now: Clarence Thomas. He and five of his conservative Republican appointees voted last week to approve the first-ever exemption to state laws that prohibit discrimination based on sexual orientation in the public marketplace. Thomas is 75; the other five range in age from 51 (Amy Coney Barrett) to 73 (Samuel Alito). If each current justice retires at 80 (the approximate average age that a justice retires these days), and if a pro-LGBTQ president is in office when each retires, and if nobody dies, the soonest 303 Creative might be overturned is 2030.


First, of course, Republican then-Senate Majority Leader Mitch McConnell (Kentucky) denied a confirmation vote for then-President Barack Obama's nominee Merrick Garland, who is now the attorney general. As a result of that, former President Donald Trump nominated conservative Neil Gorsuch. A retirement (Anthony Kennedy) and a death (Ruth Bader Ginsburg) gave Trump two more nominations, which McConnell fast-tracked, creating a super-majority of six Republican nominees on the court.

With the six conservatives on the court, the Alliance Defending Freedom, a national conservative litigation group seeking to undermine equal rights for LGBTQ people — and which was consistently losing at the lower court levels — accelerated its efforts to get appeals to the U.S. Supreme Court.

One case it had in the pipeline was 303 Creative v. Elenis. It involved a website designer, Lorie Smith of Colorado, who was willing to say that she was opposed to same-sex marriage for religious reasons and that she had "worries" that a same-sex couple might come to her and ask her to design a wedding website for them. If a same-sex couple did, she said her Christian beliefs would require her to say no, thus putting her in violation of Colorado's law against discrimination based on sexual orientation in public accommodations.

There was no evidence that any same-sex couple had ever asked her, and this is a particularly interesting point. Typically, courts won't take a case unless there is a real — not imagined — conflict. Presumably, the alliance could not find a website designer who ever faced a real conflict, so it proceeded with Smith and her alleged worries. The litigation lost in the district court (which noted that Smith had not been faced with a same-sex couple's request) and lost in the federal appeals court (which said Smith's religious beliefs did not exempt her from obeying the law that applies to all businesses).

But then it was reported, on the day before the decision, that Alliance Defending Freedom filed documents with the court that included a significant piece of what appears to be false information. Specifically, the documents indicate that Smith said, under oath, that a same-sex couple had contacted her through her website to ask about creating a wedding website for them. This is important because courts do not typically take cases unless an "injury in fact" to the plaintiff's rights is either actual or "imminent."

According to the New Republic magazine () and numerous other outlets, Smith identified under oath that a man named "Stewart" inquired about retaining her services to design something for his wedding to another man and left a phone number. Media calling the phone number got a Stewart, but the man, who would not share his last name, told the outlets he is not gay, has never contacted Smith to ask about a gay wedding website, has been married to a woman for 15 years, and is himself a web designer. The alliance's case, said the New Republic, was "built on nothing much more than imaginary Christian grievance."

Harvard law professor Laurence Tribe, in a Twitter post June 30 wrote, "If this were a normal court, with real judges in the majority, it would take seriously the news that this was a fraudulent case and would vacate its opinion and direct the imposition of sanctions on the lawyers who hacked the legal system and perpetrated this hoax."

The purported request from Stewart wasn't the basis for the federal lawsuit filed preemptively seven years ago by Smith, before she started making wedding websites, the Associated Press reported. But as the case advanced, it was referenced by her attorneys when lawyers for the state of Colorado pressed Smith on whether she had sufficient grounds to sue.

A key turning point was when the Colorado attorney general's office conceded that Smith's plans to start designing wedding websites would constitute an "expressive" activity — or speech — protected by the First Amendment. Many, if not most, wedding websites simply take information and photos that a couple provides and plug those into existing website templates. Smith claimed that she would pour herself into the creation of each website, so much so that the couple's wedding website is really her speech, not theirs. So, if Colorado forced Smith to create wedding websites for same-sex couples' weddings, it would be abridging her First Amendment right to free speech.

And then, oddly, the U.S. Supreme Court agreed to hear the alliance's appeal for Smith's case and, in doing so, stipulated that the only question it wanted to hear arguments about was "Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment."

On its face, the answer seemed obvious: Of course, it does. The court's question presumed Colorado applied the state law to "compel" Smith to "speak or stay silent."

As American Civil Liberties Union legal director David Cole said in a New York Times guest column last December, "The right question is whether someone who chooses to open a business to the public should have the right to turn away gay customers simply because the service she would provide them is 'expressive' or 'artistic.'"

Assessing the loss

LGBTQ legal groups released statements, saying the Supreme Court's 303 Creative decision was disappointing but that it would have very little impact. After all, what LGBTQ person or couple would knowingly go to an anti-LGBTQ business to seek a pro-LGBTQ-specific product or service?

Lambda Legal Defense and Education Fund Chief Legal Officer Jennifer Pizer said 303 Creative would have "limited practical impact in the marketplace."

"Given the uniquely creative service at issue here, the impact is likely to be minimal," Pizer stated. "But the door has been opened for potential future cases to expand this limited carve-out.  We will be vigilant against that possibility."

A statement released by GLBTQ Legal Advocates and Defenders said the "unusual nature" of the 303 Creative complaint "suggests the ruling has virtually no application to the overwhelming majority of businesses providing goods and services to the public."

Some pro-LGBTQ organizations were less optimistic. The executive director of the National Center for Lesbian Rights, Imani Rupert-Gordon, issued a statement saying that, "While the court's holding is narrow and will apply only to a very small number of businesses, the dissenting justices rightly stress that the decision creates an unprecedented exception to non-discrimination laws."

The ACLU's Cole said the majority decision "opens the door to any business that claims to provide customized services to discriminate against historically-marginalized groups."

Most non-LGBTQ commentators were occupied with the only other decision released June 30, the court's last day in the 2022-23 session. That decision, Biden v. Nebraska, had the same 6-3 split as 303 Creative. It struck down President Joe Biden's program to forgive up to $20,000 per person in federal student loan debt. Among those commentators who did write about 303 Creative, many saw things more like Cole.

"The court handed a major victory to business owners who oppose same-sex marriage for religious reasons," said Amy Howe, who writes regularly for the popular site.

New York Times reporters Abbie VanSickle and Adam Liptak wrote, "The decision also appeared to suggest that the rights of LGBTQ people ... are on more vulnerable legal footing, particularly when they are at odds with claims of religious freedom. At the same time, the ruling limited the ability of governments to enforce anti-discrimination laws."

However, writing in the New York Times Opinion section Sunday, July 2, UC Davis law professor Aaron Tang noted that states could easily maneuver around the 303 Creative ruling by updating their anti-discrimination laws to allow those business owners objecting to them on First Amendment grounds to designate an employee or contractor to instead do the work.

"Progressive states retain an important workaround: They can amend their laws to continue protecting gay and lesbian customers from discrimination without compelling expression by religious business owners," wrote Tang.

Biden issued a statement saying he was "deeply concerned that the decision could invite more discrimination against LGBTQI+ Americans."

"More broadly, today's decision weakens long-standing laws that protect all Americans against discrimination in public accommodations — including people of color, people with disabilities, people of faith, and women," stated Biden.

Law professor and MSNBC legal commentator Joyce Vance wrote in her blog that the 303 Creative decision sets up "an opening here to use the First Amendment to establish the primacy of one group's religious views in a way that is antithetical to the Founding Father's vision of a religiously-neutral government."

"That's the slippery slope here," said Vance, "and the rate of descent depends on how far this court is willing to go."

Twenty-eight states and the District of Columbia have laws on the books that explicitly, or by court interpretation, prohibit sexual orientation discrimination in public accommodations. "Public accommodations" means any business or venue that is open to and/or serves the public, including restaurants, hotels, means of transportation, entertainment or sports venues, and website designers.

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