The US Supreme Court granted a petition on February 22 that was filed by Alliance Defending Freedom (ADF), an anti-LGBT religious litigation group, seeking to overturn a ruling by the US Court of Appeals for the 10th Circuit, which held that Colorado has a compelling interest to prevent discrimination against same-sex couples by businesses that provide services for weddings sufficient to overcome the free speech rights of the businesses. The case, 303 Creative LLC v. Elenis, is one of several in which ADF has sought to narrow the rights of same-sex couples by establishing constitutional protection for businesses that don’t want to supply services or goods for same-sex weddings.
Lori Smith is a website designer who styles herself an “artist” with unique skills in custom-designing websites for her customers. She claims that she wanted to expand her business to design wedding websites, but consistent with her religious views about marriage, she did not want to design websites for same-sex couples. Furthermore, she wanted to be able to announce on her website her policy of limiting her wedding website business.
Smith’s business, 303 Creative LLC, is based in Colorado, and is subject to the provisions of Colorado’s Anti-Discrimination Act, which prohibits discrimination because of sexual orientation, and also provides that businesses may not publish communications announcing that they will deny services or goods based on the grounds prohibited by the state.
In an earlier case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Commission ruled that a baker’s refusal to design a wedding cake for a same-sex couple violated the anti-discrimination provision, but ultimately the US Supreme Court overturned that decision in 2018, having concluded that the Commission failed to provide a neutral forum for the baker’s case because of comments about religion that members of the Commission made at the hearing of his case, as well as actions on three other complaints that the Court found to be inconsistent with its position in the baker’s case. However, the Supreme Court did not rule directly in Masterpiece Cakeshop that the baker’s religious views or freedom of speech compelled the Commission to rule in his favor, while commenting that generally businesses with religious objects are not exempt from complying with anti-discrimination laws.
Claiming to be fearful of possible prosecution, Smith filed suit in federal court seeking a declaratory judgment that her First Amendment freedom of religion and freedom of speech would protect her from prosecution under the Colorado statute if she expanded into the wedding website business, declined requests to design same-sex wedding websites, and publicized her policy. The district court ruled in favor of the state, refusing to issue the declaratory judgment, and the 10th Circuit Court of Appeals affirmed that ruling.
The 10th Circuit panel split 2-1, with the majority holding that Smith’s case raised serious First Amendment issues, but that the state had a compelling interest in preventing sexual orientation discrimination that would justify the district court’s refusal to rule that Smith’s proposed method of doing business was constitutionally protected. The Chief Judge of the Court of Appeals, Tim Tymkovich, dissented in a strongly-worded opinion arguing that the three-judge panel majority had misapplied the Supreme Court’s 1st Amendment precedents. (Of interesting note, Tymkovich, in his former role as attorney general of Colorado, defended the anti-gay Amendment 2 to the Colorado Constitution, which was held unconstitutional by the Supreme Court in 1996 in Romer v. Evans.)
ADF’s petition posed two questions to the Court. First, “whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist’s sincerely held religious beliefs, violates the Free Speech or Free Exercise Clauses of the First Amendment;” second, “whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable under [Employment Division v.] Smith, and if so, whether this Court should overrule Smith.” In Employment Division v. Smith, the Supreme Court ruled thirty years ago the states were not required to exempt religious objectors from complying with laws of general applicability that were neutral regarding religion, while laws that fell outside the scope of Smith would be subject to strict scrutiny, placing a burden on the government to prove it had a compelling interest to enforce the law despite its burden on the exercise of religion.
While the Court granted review of the 10th Circuit’s decision on free speech grounds, it rewrote ADF’s first question to omit reference to religious freedom, and did not grant review on the second question which had suggested that this case fell outside the scope of Smith, mainly because it allowed an exception for situations where sex is a bona fide qualification for a service, or that Court should overrule Smith entirely.
Overruling the Smith decision is an objective of ADF and other religious freedom groups that have been embraced by three members of the Supreme Court: Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch. They signed concurring opinions last year in Fulton v. City of Philadelphia criticizing the majority of the Court for failing to overrule Smith in that case, which concerned the refusal of Catholic Social Services to certify same-sex couples to be foster parents in a dispute with Philadelphia’s Human Services Administration. The Court unanimously ruled that Philadelphia could not enforce the anti-discrimination provision in its foster parenting contract with CSS because the provision allowed for discretionary exceptions, and thus did not come within the scope of the Smith precedent, and that Philadelphia did not have a compelling reason for refusing to make an exception for CSS when there were two dozen other agencies in the city that would certify same-sex couples to be foster parents.
ADF’s petition for review in 303 Creative argued that because the Colorado statute made some exceptions to its anti-discrimination requirements, it did not come within the Smith ruling. But that does not provide grounds for using this case to overrule Smith, because the 10th Circuit applied strict scrutiny anyway and found that the state had a sufficiently compelling justification to maintain its law. The 10th Circuit majority emphasized Lori Smith’s claim about the unique nature of her services, such that denying them categorically to same-sex couples would not leave the couples with an alternative source of the same unique talents. Perhaps this is why Justices Thomas, Alito, and Gorsuch did not announce that they would have granted this petition on ADF’s second question. It seems clear that Chief Justice John Roberts, who seems to be taking pains to avoid grappling with overruling Smith and who devised a rationale in the Fulton case to rule in favor of CSS without overruling Smith, would likely pursue the same route in this case and bring Justices Brett Kavanaugh and Amy Coney Barrett along with him. This is not likely a case where there would be five or six votes to overrule Smith.
By the same token, it is understandable that the Court edited the first question to drop out the religious elements and treat this purely as a freedom of speech case. The Court never addressed the baker’s freedom of speech argument directly in Masterpiece Cakeshop, and this case would provide a vehicle for addressing that argument in a factual setting that will appeal to the free speech advocates on the Court. It is one thing for a baker to present himself as a “cake artist” whose creative talents in designing cakes should evoke First Amendment protection, but another thing for a web designer to raise free speech issues regarding a website with substantial textual content, and especially calling into question the Colorado provision restricting what a business can say about its customer policies.
ADF posed its question in broadly generic terms, referring to Smith as an “artist.” In its reply to ADF’s petition, the state argued that as a commercial web design business, Smith is hired to convey the customer’s message, not to convey her own message. On the other hand, Smith’s plan is to retain full editorial control over the wedding websites she would design, arguing that the website should express her views about marriage, not just the customer’s views. On this battleground, the issue will be joined before the Court.
This case will probably be argued next fall during its October 2022 Term, with a decision coming in the winter or spring of 2023. Numerous religious freedom and free speech groups filed amicus briefs with the Court urging it to take this case. Over the coming months, numerous LGBT rights group are likely to organize amicus briefs supporting Colorado’s claim that its law does not violate the First Amendment rights of businesses that want to offer web design services for weddings.