The latest battle pitting the civil rights of gay and lesbian couples against assertions of religious liberty reached the U.S. Supreme Court on December 5 — a Court that has repeatedly ruled in favor of religious groups. At issue is how to justify claims of religious liberty against laws barring discrimination based on sexual orientation.
The case is uniquely consequential, coming into a Supreme Court that has already overturned the landmark Roe v. Wade case and put Obergefell v. Hodges in its sights. At its core, the case under consideration — 303 Creative LLC v. Aubrey Elenis — asks whether First Amendment free speech protections in fact allow anti-LGBTQ businesses a constitutional right to violate civil rights laws and violate the civil liberties of lesbian and gay couples. A potential court decision in favor of religious liberties over LGBTQ civil rights is concerning to advocates for LGBTQ civil rights.
Justice Clarence Thomas, who has previously ruled against LGBTQ civil rights in other cases, noted, “The complicating fact here is this is not a hotel. This is not a restaurant. This is not a riverboat or a train.”
Thomas said, “I’m interested in the intersection of public accommodation law and speech.”
How contentious this issue is was evidenced by how long the justices debated the oral arguments. The time was meant to extend to just over an hour, but the back and forth among the justices and to the plaintiff’s attorney ran to nearly two-and-a-half hours. The justices asked many questions — some based on hypotheticals — as they grilled the attorneys on the ramifications of allowing 303 Creative LLC to deny service for same-sex weddings.
The case was brought by Lorie Smith, a Colorado web designer who sued Colorado over anti-discrimination laws. Smith, who started her company 303 Creative a decade ago, claims that the law compels her to support same-sex marriage in violation of her religious beliefs. As PGN reported last year, a divided panel on the U. S. Court of Appeals for the Tenth Circuit ruled against Smith in August 2021.
The Supreme Court also decided a similar case in 2018 brought by a different Colorado businessman, Jack Phillips, the owner of Masterpiece Cakeshop. Phillips refused to bake a cake for a same-sex couple’s wedding. At that time, Justice Anthony Kennedy wrote that Colorado “was neither tolerant nor respectful” of Phillips’ religious beliefs.
The questions and tone of the majority conservative court during the Dec. 5 oral arguments leaned heavily toward the plaintiff, with the conservative justices clearly backing Smith. What was less clear from the questions and debate was exactly how the conservative majority would support such a decision against subsequent claims that such a decision would lead to, such as if other businesses try to use free speech or religious beliefs to reject services to people based on race, religion, gender or anything else protected by anti-discrimination laws.
The court’s three liberal justices, Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor, all voiced their concerns that allowing Smith to side-step Colorado’s public accommodation law would allow other businesses to deny services on the basis of race, ethnicity or disability if the court rules in Smith’s favor. They also queried whether Smith’s websites are Smith’s speech or that of her clients.
While the court’s conservative majority appeared prepared to find that Colorado cannot force Smith to create websites for same-sex weddings, several acknowledged differences between self-declared artists, as they determined Phillips was, and mere vendors who are selling goods and services in the marketplace. Smith appears to fall into a gray area between the two.
As The Washington Post reported, “briefs in the case brought up a Hindu calligrapher hypothetically being commissioned to write ‘Jesus is Lord,’ a Democratic freelance speechwriter possibly being forced to provide his services to Republicans and whether a Christmas store might have the right to say ‘No Jews allowed.’”
Twenty Republican-leaning states signed on to amicus briefs supporting Smith. Twenty-one Democratic-leaning states and the District of Columbia also proffered a filing to the Supreme Court. The Justice Department backed Colorado in the case.
Legal experts and LGBTQ rights advocates had argued that Justice Amy Coney Barrett should be compelled to recuse herself from the case due to conflicts of interest over the issues at its core. Barrett made no effort to do so.
Barrett told Kristen Waggoner, CEO, President, and General Counsel of the Alliance Defending Freedom who argued the case for Smith, that her “strongest ground” was in detailing the uniqueness of the websites Smith makes and her work in creating them. “It’s about the message,” Barrett said.
Among the more incendiary points in the arguments were queries posed by newly confirmed Justice Ketanji Brown Jackson and by Justice Samuel Alito.
Jackson proposed several hypotheticals to Waggoner, all of which were Christmas themed, including a long exchange about the classic — and wholly white — film “It’s a Wonderful Life.” The other was about race-based “art.”
Jackson asked Waggoner about a hypothetical mall business that offered “scenes with Santa.” Jackson posed, “This business wants to express its own view of nostalgia about Christmases past by reproducing classic 1940’s and 1950’s Santa scenes, they do it in sepia tone and they are customizing each one, it’s not off the rack, they are bringing people and having them interact with Santa as children because they are trying to capture the feelings of a certain era.”
But, Jackson said, “precisely because they are trying to capture the feelings of a certain era, their policy is that only white children can be photographed in this way because that’s how they view the scenes with Santa that they are trying to depict.”
“The specific objection you are including is not necessarily in that photograph but even if it were, this court has protected vile, awful, reprehensible, violent speech in the past,” Waggoner argued after some back-and-forth, appearing to associate her client’s position with that of “reprehensible” speech.
Justice Elena Kagan responded to Waggoner, sounding shocked. Kagan said, “It ‘may be an edge case’ meaning it could fall on either side, you’re not sure?”
Alito, who has a strongly anti-LGBTQ bias and who authored the decision that overturned Roe v. Wade, took up the Santa Claus hypotheticals while questioning Colorado Solicitor General Eric R. Olson.
“Justice Jackson’s example of the Santa in the mall who doesn’t want his picture taken with Black children, so if there’s a Black Santa at the other end of the mall, and he doesn’t want to have his picture taken with a child who’s dressed up in a Ku Klux Klan outfit, that Black Santa has to do that?” Alito asked.
That exchange prompted Rep. Ritchie Torres (D-NY), the only out Black gay man in the House, to comment on Twitter, “According to SCOTUS Justice Alito, prohibiting a Christian from discriminating against LGBTQ people is like forcing ‘Black Santa’ to appear in a photo with the KKK. This is what passes for logic in a right-wing Supreme Court. Shameful!”
As part of her argument, Waggoner told the court that Smith’s free speech has been “chilled for six years,” and that Smith has been forced to curtail her plans to expand her business to create custom websites for weddings while she fought for the right to do so in the courts.
The Supreme Court is expected to decide the case by the end of its session in June 2023.