Web designer says free speech gives
right to reject same-sex couples
Originally published in the Winter 2022 issue of California Publisher.
By Jason M. Shepard
A Christian web designer who refuses to create marriage websites for same-sex couples is at the center of a new case before the U.S. Supreme Court pitting free speech rights against anti-discrimination laws.
The case is one of several before the Supreme Court this term and next that may redefine the scope and limits of fundamental constitutional rights as a result of culture-war battles.
Through her small graphic-design business in Colorado, 303 Creative, Lorie Smith wants to create and sell websites that tell the stories of couples getting married. She says her religious beliefs preclude her from creating websites for same-sex marriages.
The First Amendment, she says, should protect her right to choose what messages she promotes through her business.
However, Colorado, like many states, has a law prohibiting discrimination in public accommodations, including based on sexual orientation.
Many public accommodation laws trace their roots to combatting Jim Crow-era segregation practices that discriminated against Black citizens.
Today, the right of equal access to businesses and services open to the public is engrained in American law.
But Smith’s case aims to question that long-standing practice.
Can the government in the name of equality require business owners, including those engaged in creative expression, to work with clients with whom they disagree? Or does the First Amendment give business owners the right to deny their services to LGBTQ citizens?
Those are among the questions the Supreme Court will consider when it hears the case of 303 Creative LLC v. Elenis in the next term.
The Supreme Court has upheld First Amendment-based challenges to anti-discrimination laws.
In early application of the Civil Rights Act of 1964 prohibiting discrimination in public accommodations, the Supreme Court rejected “as patently frivolous” arguments used by white business owners that their religious views required segregation by race.
When it comes to gender discrimination, in 1973, for example, the Supreme Court ruled that a Pittsburgh ordinance prohibited the Pittsburgh Press newspaper from designating “male” and “female” specific job postings, rejecting the newspaper’s arguments that their content choices for headings of help-wanted advertisements were protected by the First Amendment.
In recent years, federal appellate and state high courts have differed on questions about religious liberty, free speech and discrimination toward LGBTQ citizens in cases regarding cake bakers and florists who don’t want to provide services to weddings of same-sex couples.
The Smith case began in 2016, when Smith sought the help of the conservative Alliance Defending Freedom, an advocacy group that funds litigation to protect religious liberty, in a pre-emptive bid to challenge the Colorado law. (The Southern Poverty Law Center identifies the group as a “designated hate group” for its anti-LGBTQ advocacy).
She lost her case in federal district court in 2017 and before the Tenth Circuit Court of Appeals in 2021.
The appeals court in a 2–1 vote ruled Colorado’s law was a neutral law of general applicability and that even though it implicated Smith’s speech, the law survived “strict scrutiny.” That is, the law represented a compelling government interest, and the law is narrowly tailored to satisfy that interest.
Colorado has compelling interest in protecting the dignity of marginalized groups and in ensuring equal access to the commercial marketplace, the appellate court ruled.
While Smith has the right to engage in speech against same-sex marriage, that right is limited when she is engaged in commerce related to publicly available goods and services, Judge Mary Beck Briscoe wrote for the majority.
Allowing Smith to deny services to same-sex couples would “relegate LGBT consumers to an inferior market,” Judge Briscoe wrote.
In dissent, Chief Judge Timothy Tymkovich said the majority went too far in support of anti-discrimination laws, contorting the First Amendment in the process.
“It seems we have moved from ‘live and let live’ to ‘you can’t say that,” he wrote.
Judge Tymkovich acknowledged that eliminating discrimination in public accommodations was a compelling government interest.
But, he wrote, “ensuring access to a particular person’s unique, artistic product — as a majority holds, is not a compelling state interest.”
He said a better approach would be for the law to allow for exceptions protecting artistic expression in this context.
Such an exception would protect individuals from being forced by the government to communicate in ways that violate their conscience. Otherwise, “(t)aken to its logical end, the government could regulate the messages communicated by all artists, forcing them to promote messages approved by the government in the name of ‘ensuring access to the commercial marketplace,’” Judge Tymkovich wrote.
Judge Tymkovich summarized several Supreme Court precedents standing for the proposition that the First Amendment prohibits the government from forcing individuals to speak messages with which they disagree.
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein,” the Supreme Court wrote in the 1943 decision West Virginia Board of Education v. Barnette, in which the Court that it was unconstitutional for public schools to force children to salute the U.S. flag.
The key difference in these cases, of course, is whether individuals who open up their businesses in the commercial marketplace can discriminate in ways that violate public accommodation laws.
“The constitutional protections for religious freedom and free speech were never intended as weapons of discrimination for those doing business with the general public,” Lambda Legal Senior Counsel Jennifer C. Pizer said in a written statement.
In agreeing to take the case, the Supreme Court limited the review to questions about the free speech clause, not the free exercise of religion clause.
That means the justices will likely avoid, for now, broader questions about key religious freedom precedents that some conservative activists have sought to overturn.
For example, Lorie Smith’s lawyers also asked the Court to consider overturning Employment Division v. Smith, a 1990 precedent that established laws of general applicability couldn’t be struck down on religious freedom grounds. In that case, the Court rejected a claim that the free exercise of religion clause should allow a man to use peyote, an illegal drug, in a religious ceremony. At least three Supreme Court justices — Samuel Alito, Clarence Thomas and Neil Gorsuch — have signaled support for overturning the decision. That would remove one major hurdle for religious liberty claims in the future.
While avoiding directly the religious freedom questions, Lorie Smith’s web design case still raises fundamental questions about free speech and anti-discrimination laws to make this an important case to watch.
Jason M. Shepard, Ph.D., is professor and chair of the Department of Communications at California State University, Fullerton. His primary research expertise is in media law, and he teaches courses in journalism, and media law, history and ethics. Contact him at firstname.lastname@example.org or Twitter at @jasonmshepard.