In a 6-3 decision on the last day of the U.S. Supreme Court’s 2022-2023 session, the court ruled in favor of legalizing discrimination against LGBTQ+ people. As PGN reported in December 2022 when the SCOTUS heard the case of web designer Lori Smith in 303 Creative LLC v. Aubrey Elenis, the case pivoted on 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. The potential for the court to decide in favor of religious liberties over LGBTQ+ civil rights concerned LGBTQ+ civil-rights advocates.
The case was first filed in September 2016 and has moved through various courts prior to this ruling.
Those concerns were justified. The Supreme Court ruled 6-3 in favor of the evangelical Christian website designer who argued that a Colorado anti-discrimination law violated her First Amendment right to refuse to create websites for same-sex weddings and deny service to lesbian and gay couples.
The ruling was a major victory for business owners who claim to oppose same-sex marriage for religious reasons. The conservative majority asserted that Colorado cannot enforce the state’s anti-discrimination law against an evangelical Christian website designer who does not want to create wedding websites for same-sex couples because doing so would violate her First Amendment right to free speech.
Justice Neil Gorsuch wrote for the majority, in a decision joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh and Amy Coney Barrett. Gorsuch wrote that Colorado cannot “force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.”
Gorsuch said that the court’s decision would provide similar protection to other business owners whose services involve speech, such as artists, speechwriters and movie directors. The First Amendment, Gorsuch explained, “protects an individual’s right to speak his mind,” even when others may think that such speech is “deeply misguided” or it may actually cause “anguish.”
Gorsuch noted the U.S. Court of Appeals for the 10th Circuit agreed that the websites that Smith wants to create are speech. But if Smith wants to speak, Gorsuch asserted, she is forced to choose between her conscience and violating Colorado law, or following the law and violating her religious beliefs. Under Supreme Court cases on the First Amendment, Gorsuch was clear: “That is enough, more than enough, to represent an impermissible abridgment of the First Amendment’s right to speak freely.”
Gorsuch wrote that the Colorado law protecting against discrimination could cause other conflicts for religious people. He wrote that “governments could force ‘an unwilling Muslim movie director to make a film with a Zionist message,’ they could compel ‘an atheist muralist to accept a commission celebrating Evangelical zeal,’ and they could require a gay website designer to create websites for a group advocating against same-sex marriage, so long as these speakers would accept commissions from the public with different messages.”
Gorsuch’s ruling, standing firmly for the rights of Smith, shocked the three liberal justices. In her dissent, senior justice Sonia Sotomayor accused her conservative colleagues of allowing businesses the right “to refuse to serve members of a protected class” for the first time in its history.
In a 38-page dissent, Sotomayor detailed the long, fraught history of discrimination against LGBTQ+ people and noted a “nationwide rise in anti-LGBTQ+ discrimination” calling it “heartbreaking” and adding, “Sadly, it is also familiar.”
She added that “the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.”
Sotomayor wrote, “Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities. New forms of inclusion have been met with reactionary exclusion.”
Sotomayor wrote, “The law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment.”
Sotomayor also wrote in her dissent, “When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims.”
Sotomayor suggested that in allowing Smith and others to deny services to lesbian and gay couples, the SCOTUS had opened the door to even broader discriminatory practices. She wrote, “The decision threatens to balkanize the market and to allow the exclusion of other groups from many services. A website designer could equally refuse to create a wedding website for an interracial couple, for example.”
Justices Elena Kagan and Ketanji Brown Jackson joined Sotomayor’s dissent.
President Joe Biden criticized the ruling in a White House statement, arguing that “In America, no person should face discrimination simply because of who they are or who they love.”
Biden said, “The Supreme Court’s disappointing decision in 303 Creative LLC v. Elenis undermines that basic truth, and painfully it comes during Pride month when millions of Americans across the country join together to celebrate the contributions, resilience, and strength of the LGBTQI+ community.”
Biden voiced similar concerns to Sotomayor’s, noting, “While the Court’s decision only addresses expressive original designs, I’m 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.”
Biden said his administration would work with federal agencies to enforce laws that protect against discrimination based on gender identity or sexual orientation.
“We will also work with states across the country to fight back against attempts to roll back civil-rights protections that could follow this ruling.”
In a statement on his website, Colorado Attorney General Phil Weiser criticized the ruling, saying in part that it “threatens to destabilize our public marketplace and encourage all kinds of businesses — not just those serving weddings — to claim a First Amendment free speech right to refuse service to certain customers.” He said Colorado officials “will work hard to ensure that, within the confines of the Court’s opinion, we take action to hold accountable those who engage in unlawful discrimination.”
Since the SCOTUS decision, questions have arisen about the rationale for the case.
Transportation Secretary Pete Buttigieg, who is openly gay, said, “I think it’s very revealing that there’s no evidence that this web designer was ever even approached by anyone asking for a website for a same-sex wedding.”
Sherrilyn Ifill, former President and Director-Counsel of the NAACP Legal Defense Fund and a senior fellow at the Ford Foundation, wrote on Twitter in response to an AP story stating that “A Colorado web designer who the U.S. Supreme Court ruled could refuse to make a wedding website for gay couples had cited a request from a man who says he never asked to work with her.”
In the linked story, the AP reported, “The request in dispute, from a person identified as “Stewart,” wasn’t the basis for the federal lawsuit filed preemptively seven years ago by web designer Lorie Smith, before she started making wedding websites. 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.”
Ifill said, “This is not some fun story for a day. This is potential fraud on the Court. It warrants investigation, potential vacatur & disciplinary proceedings. It also should be seen as a consequence of the Court’s apparent zeal to hear this case which did not meet standing even w/o fraud.”
Ifill also wrote in a subsequent tweet, “Folks let’s be clear. We (attorneys) are prohibited by ethical & procedural rules from making misrepresentations to the Court. If this story about ‘Stewart’ was made by her lawyers in briefs, or at arguments, it’s a serious issue.”
Ifill’s tweets garnered 6 million views.
Adding another question to the source of the original suit, Senator Josh Hawley (R-MO) wrote on Twitter of the case, “Major victory for free speech and religious liberty today – proud of my wife Erin, who litigated this case.”
The Law & Crime blog cited calls for Erin Hawley to be sanctioned in the case for submitting “fake” documents to SCOTUS.
As PGN previously reported, Smith was represented by the conservative advocacy group Alliance Defending Freedom (ADF), which has been a litigator in numerous QAnon-style cases as well as transgender healthcare bans, anti-abortion laws, challenges to COVID-19 vaccine mandates, access to medical abortion, and restrictions on conversion “therapy” for LGBTQ+ minors. Erin Morrow Hawley is Senior Counsel and Vice President of Center for Life & Regulatory Practice with ADF.