On Monday, the Supreme Court will hear oral argument in 303 Creative LLC v. Elenis, the latest iteration of the question of whether the government can compel those who have religious objections to participate in same-sex weddings.
Recall the case decided in 2018, Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which cake artist Jack Phillips was punished for declining to design a cake for a same-sex wedding because it violated his sincerely held religious beliefs. The Court ruled in favor of Phillips on his Free Exercise Clause challenge. But the state commission in that case had engaged in overt hostility toward Phillips’ religious beliefs, among other things comparing them to defenses of slavery and the Holocaust. That rendered its conduct egregious enough that Justices Stephen Breyer and Elena Kagan helped give the Court a 7–2 majority, even while they issued a separate concurrence that suggested they were ready to vote otherwise in a case that did not include such behavior.
303 Creative does not have that factual wrinkle, but its resemblance to the facts in Masterpiece Cakeshop is obvious. It involves a Colorado plaintiff, Lorie Smith, who wants to expand her business as a graphic artist and website designer to weddings. Smith embraces the traditional definition of marriage as a function of religious belief. While her services are open to everyone, she does not want to be forced to communicate messages or promote events that are inconsistent with her religious beliefs. She therefore does not want to be forced to promote same-sex weddings, but that is precisely how (as in Jack Phillips’ case) state officials apply the Colorado Anti-Discrimination Act (CADA).
Smith filed a pre-enforcement challenge to CADA in federal court and lost at both the district and circuit courts. Although her challenges were based on both the Free Exercise and Free Speech Clauses, the Supreme Court is reviewing only the free speech claim.
The Tenth Circuit recognized that Smith’s wedding websites are “pure speech” and that CADA’s regulations are subject to strict scrutiny because they entail compelled speech and content- and viewpoint-based restrictions in this case. Yet two judges on the panel reached the head-scratching conclusion that granting Smith an exemption “would necessarily relegate LGBT consumers to an inferior market because Appellants’ unique services are, by definition, unavailable elsewhere.” In other words, because Smith is the only person who can provide her unique services, the government has a compelling interest in requiring her to provide them. Writing in dissent, Judge Timothy Tymkovich countered that “ensuring access to a particular person’s unique, artistic product . . . is not a compelling state interest” that would satisfy strict scrutiny. Of course, “essentially all artwork” is “not fungible,” but “[t]aken to its logical end, the government could regulate the messages communicated by all artists.”
In addition to Masterpiece Cakeshop, two precedents that dealt with the confluence of public accommodations law and free speech are bound to come up in oral argument, as they did in both sides’ briefs. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995), the Court held that Massachusetts could not apply its public accommodations law to require private citizens organizing the St. Patrick’s Day Parade to include among the marchers a group imparting a message they did not want to convey. In Boy Scouts of America v. Dale (2000), the Court held that it would violate the Boy Scouts’ right of expressive association to use New Jersey’s public accommodations law to force the Boy Scouts to readmit an assistant scoutmaster after learning he was “an avowed homosexual and gay rights activist.”
In both cases, First Amendment rights precluded an oppressive application of a public accommodations law. The Biden administration has sided with Colorado and in the solicitor general’s amicus brief makes an unconvincing effort to deny that Smith’s case belongs in the same category as other cases involving compelled speech and viewpoint discrimination. In fact, as Smith’s brief notes, she is being subjected to an even more severe level of compelled speech—CADA forces her “to personally design” and publish websites she objects to—than prior litigants.
The Court’s opinion by Justice Anthony Kennedy creating a right to same-sex marriage, Obergefell v. Hodges (2015), included an assurance that people “may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”
Obergefell has not been understood to change the free speech jurisprudence that preceded it, and Masterpiece Cakeshop signaled that the Court would maintain what has been an impressive record in recent years of respect for religious freedom. So it would simply be continuing the Court’s protectiveness of First Amendment rights for a majority of justices to hold that a graphic designer with traditional beliefs about marriage cannot be compelled to create a website for a same-sex wedding.