Supreme Court case on same-sex marriage could allow LGBTQ discrimination

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Does a website design company have a First Amendment right to discriminate against same-sex couples? That was essentially the question before the Supreme Court in 303 Creative LLC v. Elenis on Monday. More specifically, the court considered two questions: Do businesses have the right to refuse certain services to same-sex couples, and do they have the right to post a statement on their websites explaining the religious justifications for doing so? The answer to both ought to be no. Unfortunately, the tenor of the oral argument suggests the answers may well be yes, opening the door to widespread discrimination against the LGBTQ community. 

303 Creative LLC is a Colorado company that designs websites. Its owner Lorie Smith has her eye on expanding into the wedding market. However, she only wants to design wedding websites for straight couples, on the grounds that same-sex marriage conflicts with God’s will. 

Unfortunately, little in Monday’s oral argument suggests that the Supreme Court will rule in Colorado’s favor.

Unfortunately for Smith, to refuse service to members of the public because they are gay is illegal: Colorado bans businesses, shops and other places of public accommodation from discriminating on the basis of sexual orientation. 303 Creative argues that its First Amendment rights trump Colorado’s antidiscrimination law.

If this case creates a feeling of déjà vu, that’s because the 2018 Masterpiece Cakeshop LTD v. Colorado Civil Rights Commission decision, concerning a bakery’s refusal to create a wedding cake for a same-sex couple, also raised free speech and religious liberty claims. But the Supreme Court reached no conclusion on the free speech claim and instead ruled in favor of the bakery on narrow religious grounds

303 Creative v. Elenis, in contrast, is solely a free speech case. It argues that requiring it to design a wedding website for a same-sex couple forces it to endorse same-sex marriage in violation of the First Amendment’s free speech clause, which states that “Congress shall make no law … abridging the freedom of speech.” 

Existing constitutional law requires at least two things to be true in order for 303 Creative to win: that providing website services to clients is speech that’s protected by the free speech clause, and that the government can’t articulate a reason that justifies possible infringement on the design company’s free speech rights. (No constitutional right is absolute, so even speech rights may have to yield to a compelling government interest.)  

The first requirement may seem straightforward; after all, wedding websites for customers and 303 Creative’s proposed statement for the company’s own website both contain written words, and if written words are not speech, then what is? But this question is in fact complicated. Speech in the colloquial sense does not always match “speech” in the constitutional sense: Sometimes speech is not “speech” but conduct, and therefore not protected by the First Amendment, and sometimes conduct counts as protected “speech.” 

For example, an American telling national security secrets to a foreign enemy is speech, but it would be treated as the conduct of treason — which is not protected by the free speech clause. A sign on a restaurant that says “We do not hire Black people” is words, but it would be treated as an act of discrimination that is not protected by the free speech clause, either. 

For this reason, the proposed website statement, the second issue, might not be “speech” at all. It depends on the ruling on the first issue. If it turns out that 303 Creative does not have a free speech right to refuse service to same-sex couples, publishing a statement on its website that it will not provide wedding services to gay and lesbian couples could be characterized as discriminatory conduct that triggers no free speech review.

At the same time, conduct may express a message and therefore count as constitutionally protected “speech.” The classic example is burning a draft card.  Even though a law that forbids starting fires in public outlaws conduct, because burning a draft card is intended to and understood to express a message — namely opposition to the draft — using the law to prosecute someone who burns a draft card may trigger free speech scrutiny. A law that targets conduct (burning) but also incidentally bans expressive conduct (burning a draft card to protest a war) is much less likely to be unconstitutional than a law that purposely bans speech.  

The challenge here is how to classify 303 Creative’s making or refusing to make a website for same-sex couples. Is that pure speech? If so, Colorado’s public accommodations law is unconstitutional unless the government can show that the law is necessary to accomplish a government goal of the utmost importance. Is it pure conduct? If so, it does not trigger, never mind violate, the free speech clause. Or is it akin to expressive conduct, which is afforded some free speech protection but not at the same level as pure speech?  

Not surprisingly, 303 Creative argues that the challenged law regulates pure speech. After all, the anti-discrimination law requires that it create a website of words and images. But that’s not a fair characterization of the law. 

Colorado’s law actually bars companies that open their doors to the public from refusing to serve people based on certain characteristics like sexual orientation. That’s a regulation of conduct. If the place of public accommodation is a website designer, it might incidentally affect speech, but the law itself is not targeting speech. Consequently, its odds of being constitutional are much higher than if it were pure speech. 

But because no constitutional right is absolute, even a pure free speech claim requires that the government cannot justify the challenged law by pointing to a really compelling need for it. In this case, the compelling need is obvious: to end discrimination against gay and lesbian couples in public spaces. This is how the government ensures not only equal access to goods and services but also equal citizenship and equal dignity. 

Unfortunately, little in Monday’s oral argument suggests that the Supreme Court will rule in Colorado’s favor. The majority of justices seemed disinclined to see this law as one aimed at conduct. And continuing a trend established by previous cases that allowed Christian store owners and Christian organizations to discriminate against same-sex couples, the conservative justices mostly ignored  the state’s interest in making sure its LGBTQ citizens are not treated as second-class citizens. Instead, various justices on the right emphasized Monday how decent people with honorable religious beliefs might oppose same-sex marriage. 

The conservative justices mostly ignored the state’s interest in making sure its LGBTQ citizens are not treated as second-class citizens.

This could have sweeping implications that go well beyond wedding websites. If the court finds for 303 Creative, this right to discriminate against gay and lesbian people won’t be limited to those whose religion condemns same-sex marriage. It would extend to companies that oppose it for nonreligious reasons but can argue that providing their speech-based services to same-sex couples compelled them to express a message of support for that marriage. Potentially, any such company hostile to gays or lesbians could argue that taking their picture or printing an invitation or acting as their lawyer or agent or counselor would express approval of homosexuality. 

Nor will this right to discriminate necessarily be limited to the LGBTQ community. As Justice Ketanji Brown Jackson suggested at the oral arguments, the argument is little different from the owners of malls claiming a free speech right to limit its Santa photos to white children if multiracial photos clash with their convictions. 

If so, as Justice Sonia Sotomayor highlighted, it would be the first time the Supreme Court concluded that a commercial business open to the public could refuse service to someone based on their race, sex, religion or, as here, sexual orientation.



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