By Mark Satta
Wayne State University
In front of the U.S. Supreme Court justices on Dec. 5 was 303 Creative LLC v. Elenis – a major case regarding LGBTQ rights and free speech.
The petitioner, Colorado-based web designer Lorie Smith, is looking to expand her business, 303 Creative, by making wedding websites for couples that consist of one man and one woman. She wants to refuse wedding website services to same-sex couples planning to marry. Smith also wants to write on the 303 Creative website that she has been called by God to make wedding websites only for mixed-sex couples in order to promote “God’s true story of marriage.”
This would appear to violate the Colorado Anti-Discrimination Act, a state law that protects against sexual-orientation discrimination in places that offer goods and services to the public.
Smith claims the law violates her First Amendment free speech rights. The state of Colorado disagrees. The U.S. 10th Circuit Court of Appeals also sided with Colorado in July 2021.
During Dec. 5’s hearing, Supreme Court justices posed questions that provide some insight into what they think is legally relevant. The court’s conservative justices – who hold a majority on the bench – appeared sympathetic to Smith’s arguments.
As a scholar who pays close attention to the Supreme Court’s free speech and LGBTQ civil rights cases, I believe the case could have a significant impact on how federal courts handle cases where free speech rights appear to clash with anti-discrimination laws in the future.
Here are three key recurring themes that played out during the case’s day before the court:
1. Is this case premature?
The opening question in oral arguments came from Justice Clarence Thomas, who asked Smith’s lawyer, Kristen Waggoner, to explain whether or not this case is ripe. In the law, a case is “ripe” when it is ready for litigation.
This question is particularly relevant because Smith does not yet offer wedding websites services and no charges have been brought against her under Colorado’s anti-discrimination law.
Rather, Smith is seeking a pre-enforcement judgment from the court declaring that it would be a violation of the First Amendment for Colorado to compel her to provide wedding websites to same-sex couples were she to provide wedding websites to mixed-sex couples.
This feature of the case creates some complications for the justices because courts often rely on the specific factual details in a dispute to reach a decision. But in this case, there are no actual wedding websites designed by Smith for the court to review.
Instead, Smith provided a mock-up of a sample wedding website. At least some of the justices suggested this didn’t provide enough information.
Justice Elana Kagan, for example, asked several hypothetical questions dealing with specific content that might be provided on a wedding website, and she suggested that how she would rule in a case like Smith’s might change depending on the details.
If the justices conclude that they do not yet have enough information about Smith’s web design services, they may not rule in her favor, while leaving open the possibility that they might side with her in a future case.
2. The status vs. the message
Many of the justices’ comments suggest that a key question facing the court is whether refusing to make custom wedding websites for same-sex couples is discrimination based on the content of the message or based on someone’s protected status. In this case, that protected status is sexual orientation.
Imagine someone is selling custom-designed welcome mats, for example. If that seller decides that they will only sell welcome mats with messages like “Welcome,” and not others, like “Get off my lawn,” then they are discriminating on the basis of message. This is a constitutionally permissible kind of discrimination.
On the other hand, if that seller decides that they will only sell welcome mats to certain people – for example white people, or heterosexual people – then this is discrimination on the basis of a protected status. Colorado’s discrimination law doesn’t permit this kind of status discrimination.
The question for the justices is, what kind of case is Smith’s?
Justice Neil Gorsuch, one of the conservative majority, suggested that both the defendant and plaintiff agreed that discrimination based on protected status would not be covered by the First Amendment’s free speech provision, but that discrimination based on the content of the message would be constitutional.
Gorsuch’s questions and comments suggest that he views Smith’s refusal to provide wedding websites to same-sex couples as about the message, not the status.
Brian Fletcher, the U.S. deputy solicitor general who argued during the oral arguments in support of Colorado, rejected Gorsuch’s position. Fletcher claimed that discrimination based on sexual orientation is “inextricably intertwined” with a refusal to provide services for same-sex weddings.
This would mean refusing to provide a service for same-sex couples is discrimination based primarily on status, not message.
3. How other groups might be impacted
Several of the justices raised concerns about how finding for Smith would affect other contexts.
Liberal Justice Sonia Sotomayor, for example, asked Waggoner whether ruling for Smith would permit wedding website designers to turn down requests to make wedding websites for interracial couples or for people with disabilities.
Similarly, Justice Ketanji Brown Jackson asked whether ruling for Smith would then require the court to permit a photographer to take photos only of white children as part of a 1940s-inspired mall Santa photo exhibit, even if that photographer otherwise was willing to take photos of children of color.
Conversely, some justices raised questions about what bad consequences might follow were the court to deny Smith’s request. For example, Justice Amy Coney Barrett questioned whether a gay magazine would be able to accept only paid wedding announcements for same-sex couples during Pride Month if Smith was not given the discretion to decide who to make wedding websites for.
What comes next?
The court’s ruling in this case will likely be announced toward the end of the Supreme Court’s current term, which ends in June 2023. Based on comments and questions from the six conservatives on the nine-seat court, it seems likely that the court will side with Smith. But the Supreme Court does not always behave predictably, and some of the more moderate conservative justices, like Chief Justice John Roberts and Justice Brett Kavanaugh, didn’t provide any clear signs during oral arguments about who they intend to side with.