The US Supreme Court is set to hear a case on Monday, December 5, that could have broad implications for civil rights, and LGBTQ liberties in particular.
In 303 Creative LLC v. Elenis, Colorado web designer Lorie Smith says she wants to expand her business to include wedding websites. While she has created websites for LGBTQ clients, Smith opposes same-sex marriage on religious grounds, so she wants to create websites for only opposite-sex weddings—and wants to add a note to her website explaining as much.
Colorado has an antidiscrimination law, the Colorado Anti-Discrimination Act, or CADA, that prohibits businesses that are open to the public from discriminating on the basis of numerous characteristics, including sexual orientation. Smith argues that she’s engaged in an inherently creative business—designing custom websites for customers—and that complying with the Colorado law would force her to design websites that espouse a message she disagrees with, a message supporting same-sex marriage. She argues that this sort of compelled speech violates her First Amendment right to free speech.
If this case sounds familiar—a Colorado business owner seeking to deny the business’ services to LGBTQ clientele—it’s because it is. In the 2018 case Masterpiece Cakeshop v. Colorado Civil Rights Commission, Jack Phillips refused to bake a cake for a same-sex couple.
“The legal frame that Smith is using is a frame Jack Phillips tried to use,” says Linda McClain, a BU School of Law professor and Robert Kent Professor of Law. “But the court didn’t reach the speech issue in Masterpiece Cakeshop.”
Instead, the justices ruled narrowly for Phillips, holding that states could still enforce bans on anti-LGBTQ discrimination, but officials couldn’t disparage the “sincerely held” religious beliefs of people who opposed same-sex marriage.
BU Today spoke with McClain about whether the Supreme Court might now open the door to further anti-LGBTQ discrimination and what to listen for during oral arguments on Monday.
With Linda McClain
BU Today: Let’s set the scene. What is this case about?
McClain: So, this case involves a woman, Lorie Smith, who is a website designer. And she has not yet offered website services for weddings. She says she wants to, but she fears that if she offers them, she might have to offer them to same-sex couples. And she claims that because she’s called to only do website design for marriages that reflect God’s design, which is a union of one man and one woman, she wants to celebrate God’s plan, so she only can offer her services for weddings that meet that plan. Therefore, she wanted both to not offer her wedding website services to gay customers and to put a notice on her website explaining why: that her business is about honoring God’s plan for marriage through serving customers that are entering into these kind of marriages.
BU Today: In the Masterpiece Cakeshop case, a baker did actually have a same-sex couple asking to buy a cake. But 303 Creative, LLC, is a company that doesn’t even make wedding websites yet. What does it indicate to you that the Supreme Court decided to take up this case despite there not being any requests for same-sex wedding websites yet?
McClain: It tells me the justices are eager to say something about this. Generally, there have been a lot of cases that the court dismisses for lack of standing: they say, “No one’s brought charges against you, you haven’t suffered any injury, and therefore, we’re not going to hear this at this time.” In our legal system, we generally don’t give judgments ahead of time.
There have been instances in which people bring challenges against new laws, particularly in the abortion context. Before Roe was overturned, if a state passed a super restrictive law, Planned Parenthood clinics and other clinics, doctors, and others might go in and challenge the law, because they can show that if the law goes into effect, they will be injured because they won’t be able to offer these services. But as you point out, Smith had yet to offer these services. And so I think the fact that the court took the case suggests that maybe the court is eager to say something about speech in this context.
Justice Alito, in his public speeches, has talked about how religious liberty is under threat—even though religious liberty has never done better in the Supreme Court than it’s been doing recently. According to Alito, if you say, “Marriage is between a man and woman,” you’re deemed a bigot. So, I think there’s a lot of eagerness, probably for some of these justices, to take this case and say something. The question is: how far will they go? We don’t know.
BU Today: What are the possible implications of this case? How far do you think they will go?
McClain: Some of the justices have already signaled from their concurring opinions in Masterpiece, like Justice Thomas, Justice Gorsuch, and Justice Alito, that they’re going to respect the speech argument. We haven’t heard from Justice Barrett or Justice Kavanaugh explicitly on this, yet.
As far as the liberal justices, I can’t say with 100 percent certainty, but I think the liberals are likely to say (as Colorado argues in its brief), “Look, you choose what service you want to offer to the public. If what you want to offer to the public as a service is Christian-based website design, then offer it. It’s just that once you offer that service, you can’t discriminate based on a class of customers that are protected under anti-discrimination laws.”
BU Today: The Senate recently passed the Respect for Marriage Act, which would enshrine marriage equality in federal law. Would the new law buffer any potential negative outcomes of this case for LGBTQ people?
McClain: This case is not supposed to be a vehicle to overturn Obergefell v. Hodges [the 2015 Supreme Court case that established marriage equality in the United States]. The court granted cert only on the question of whether applying a public accommodation law (such as CADA) to “compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”
The Senate bill is basically the opposite of the Defense of Marriage Act (1996). In other words, if someone from Arkansas goes to Massachusetts to get married and then comes back to Arkansas, Arkansas still has to recognize that marriage even if state laws would otherwise prevent it.
Now, of course, every state has to allow same-sex marriages and interracial marriages and recognize them under Obergefell and Loving v. Virginia [the 1967 Supreme Court case that struck down racial restrictions on marriage as violating the fundamental right to marry and Equal Protection]. So, the bill is insurance in case Obergefell was somehow overruled.
BU Today: What will you be listening for on Monday?
McClain: I’ll be listening to any questions that the newest members of the court ask, and I’ll be interested to hear what Justice Jackson asks.
I’ll also be interested to see if the conservative justices are trying to tease out what the limiting principle would be on speech protection here: are architects protected from making buildings that would hold same-sex weddings? That kind of thing. I’m sure the liberal justices are going to be posing hypotheticals along these lines—and Justices Kagan and Sotomayor might have some zingy ones, as they did in the Masterpiece Cakeshop argument.
Given Justice Alito’s hostility to Obergefell, not only his dissents, but in his public speeches, I’ll be interested to hear what he has to say.
And, I’d like to hear what the lawyers for Lorie Smith say about why having these carve-outs isn’t going to undermine the state’s goal of making sure goods and services are available to everyone. After all, in Masterpiece Cakeshop, Justice Kennedy wrote about the “community-wide stigma” for “gay persons” if there were a “long list” of persons who provide goods and services for weddings who were allowed to refuse to do so.