The Supreme Court has agreed to hear a case brought by Lorie Smith, a Colorado website designer who wants to post a message on her website indicating that she will not create wedding sites for same-sex couples.
The case is on appeal from the 10th Circuit, which ruled that although creating a wedding website is “pure speech,” her refusal violates the law. The Circuit reasoned that the law is “narrowly tailored” to protect LGBTQ customers and that she must provide the services and not send customers elsewhere because she allows for a “unique” service that the customers cannot obtain elsewhere at the “same quality and nature” that she provides.
The Supreme Court’s review will be limited to the free speech issue and not address the free exercise of religion issue, which could require the Court to address squarely and potentially overturn Employment Division v. Smith (1990). The 1990 Smith case (unrelated to the current case) held that government actions did not violate the free exercise clause of the First Amendment if they are neutral and apply the same to everyone.
This case is similar to a Colorado-based case, Masterpiece Cakeshop, but while decorating a cake had some speech implications, the point was up for debate. In this case, the 10th Circuit found that the business owner was engaged in “pure speech” and that the owner could still be required to speak in ways that violated her sincerely-held religious beliefs.
The state of Colorado had argued that the Supreme Court should not have addressed the case because 303 Creative is not currently in business, and Lorie Smith had not yet faced an enforcement action. The state also argued that the Court should not hear the free exercise issue because Colorado had strengthened free exercise rights in the wake of Masterpiece Cakeshop. They also argued that the message communicated through the website is “attributable to the customer, not the business.”
Supplemental briefing before the Supreme Court focused on the different ways that the Circuits have addressed the issue of free speech in conflict with anti-discrimination statutes. The petitioners cited an Oregon case where a baker, Melissa Klein, was required to make a custom cake celebrating a same-sex wedding. In that case, the Oregon Court of Appeals found that the free speech arguments were “irrelevant” as the requirement survived heightened scrutiny. However, the Eighth and Eleventh Circuits had held that states could not use public-accommodation laws to compel or restrict speech. A key phrase that the petitioners applied was the use of government “to force dissenting artists to speak contrary to their faith by characterizing artistic creations as mere misconduct entitled to zero First Amendment protection.”
Cases that involve a conflict in rights, in this case, the right to be free from discrimination and the right to free speech, can create some thorny issues, but in light of Employment Division v. Smith, the website designer’s free speech claim may be much more robust.
Case: 303 Creative v. Elenis (No. 21-476)
Argument Date: To be determined