Court Gets to the Heart of the Matter in Same Sex Wedding Website Case

The Supreme Court hearing on the case of a Christian website designer may have already revealed a solution in what may be the most complex and polarizing case of this term.

Lorie Smith, the owner of 303 Creative LLC, has said she would not create websites for same-sex weddings because it conflicts with her Christian beliefs – but that refusal would violate a Colorado anti-discrimination law.

303 Creative LLC v. Elenis presents an “irresistible force” meets “immovable object” situation. It pits the future of state and federal laws that protect against discrimination based on sexual orientation against the ability to operate your business as you want, without the government telling you to compromise your beliefs.

This dividing line isn’t as bright as it seems; they rarely are. While people are clearly embedded in each camp, many others are deeply conflicted. I’m one of them. Surely there must be a way to let people live their beliefs and express their views while also ensuring that no one faces discrimination, even if unintentional.

While it doesn’t always happen, this is one time that the oral argument might just have found one.

The Dec. 5, 2022, hearing clarified the issues at stake, identified a consensus solution and identified a manageable way of resolving similar disputes in the future.

In advance of the hearing, Smith, Colorado and more than 75 interested groups raised tough questions about whether website building is “speech” or “conduct” and who is actually “speaking” when Smith creates these websites. For many, these written briefs might have stirred up more confusion than clarity.

During the two-plus hours of argument before the court, these questions coalesced into one theme: Is Smith denying service to a potential client because that client is gay or because of the specific message – celebrating a same-sex wedding – that she refuses to convey?

Justice Amy Coney Barrett offered two hypotheticals she thought would help clarify this distinction:

• An opposite sex couple who wants a website stating that sexual orientation is irrelevant to their relationship because they believe that those categories don’t matter.
• An opposite sex couple who wants to include a statement about how their relationship began when they were each married to other people.

The attorney for 303 Creative said that Smith would not create either website because these statements conflict with her beliefs.

There’s one question Justice Barrett didn’t ask that might have offered additional clarity: Would Smith create a website for an opposite sex couple waiting to marry until same sex marriage was legal in all fifty states? I suspect the same answer: Smith would not create that site because she opposes the message.

Separating motivation based on “message” as opposed to “status” can be difficult, and this lawsuit is based on a hypothetical as opposed to an actual instance of denying service. But these answers satisfied Justice Barrett and strengthened the claim that Smith is sincerely refusing to express a message rather than refusing to work with people of a particular status.

I think we will see a narrowly crafted, middle-of-the-road 6-3 ruling favoring 303 Creative, but only where it is crystal clear that denying a particular service to a customer is based on a clear desire not to express a particular message.

Supporters of 303 Creative’s speech rights and of Colorado’s anti-discrimination values – and those with a foot in both camps – should welcome such an outcome both for 303 Creative v. Elenis and the longer term.

During oral argument, both liberal and conservative justices expressed concerns that a ruling in favor of 303 Creative could result in other businesses denying services to customers. The justices explored hypotheticals involving photographers, bakers, florists, caterers and other wedding-related businesses as well as unrelated industries such as architects or landscapers. They also expressed the concern, shared by many, that a broad ruling in favor of Lorie Smith and 303 Creative might open the door to denial of services based on other protected characteristics such as race, religion, national origin, disability or age.

But a court will likely be able to determine more easily in future cases whether a business owner is refusing service because they don’t like the customer or because they really don’t want to express a particular message.

A business owner’s motivation could be clearer with a full factual record that includes an actual, not hypothetical, message being conveyed, as well as information about how that message was created, industry practices, and even the past actions of the parties themselves regarding similar customers.

Could this result in more lawsuits? Perhaps. But that’s quite often the case; court cases result in the shaping and reshaping of the law over time. But this plain-language framing also allows businesses and clients to better understand how to avoid these entanglements in the first place, which is the best possible result overall.

Kevin Goldberg is a First Amendment specialist for the Freedom Forum. He can be reached at [email protected].