OPINION ANALYSIS

Supreme Court rules website designer can decline to create same-sex wedding websites

The court handed a major victory to business owners who oppose same-sex marriage for religious reasons on Friday. A six-justice majority agreed that Colorado cannot enforce a state anti-discrimination law against a Christian website designer who does not want to create wedding websites for same-sex couples because doing so would violate her First Amendment right to free speech.

Justice Neil Gorsuch wrote for the majority, in a decision joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett. He explained that Colorado cannot “force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.” And he indicated that the court’s decision would provide similar protection to other business owners whose services involve speech, such as artists, speechwriters, and movie directors.

But in her dissent, Justice Sonia Sotomayor – in an opinion joined by Justices Elena Kagan and Ketanji Brown Jackson – called the decision “a sad day in the American constitutional law and in the lives of LGBTQ people.”

The court’s decision came just over five years after its ruling in the case of another Colorado resident, Jack Phillips, a baker who refused to make a custom cake for a same-sex couple because he believed that doing so would violate his religious beliefs. By a vote of 7-2, the court gave Phillips a narrow victory, holding that the Colorado administrative agency that had ruled against him had treated him unfairly by being too hostile to his sincere religious beliefs. But the justices did not determine whether or to what extent a service provider’s sincere religious beliefs might have to yield to the state’s interest in protecting the rights of same-sex couples, nor did they decide whether compelling Phillips to bake a cake for a same-sex couple would violate his right to freedom of speech.

In the five years since the court’s decision in Phillips’ case, the composition of the court has changed significantly. Kennedy, who wrote for the majority in 2018, retired less than a month later. He was succeeded by the more conservative Brett Kavanaugh. And two years after that, the court’s senior liberal justice, Ruth Bader Ginsburg, died at the age of 87, allowing then-President Donald Trump to appoint another conservative jurist, Amy Coney Barrett, to replace her.

It was therefore a more conservative court that this term considered the case of Lorie Smith, a devout Christian who owns a website- and graphic-design business in Littleton, Colorado. Smith wanted to expand her business to include wedding websites – but only for heterosexual couples, and she wanted to post a message on her own website to make that clear. But such a statement would run afoul of Colorado’s public-accommodations law, which bars businesses that are open to the public from discriminating against (among others) LGBTQ people or announcing their intent to do so. Roughly half of U.S. states have similar laws.

Smith went to federal court, seeking a ruling that enforcing the law against her would violate her First Amendment right to freedom of speech. On Friday, the justices agreed.

The First Amendment, Gorsuch explained, “protects an individual’s right to speak his mind,” even when others may regard that speech as “deeply misguided” or it may cause “anguish.” And the First Amendment generally also protects an individual from being required by the government to voice a particular message.

In this case, Gorsuch observed, even the U.S. Court of Appeals for the 10th Circuit agreed that the websites that Smith wants to create are speech. But if Smith wants to speak, he stressed, she must choose between following her conscience, which means only creating wedding websites for opposite-sex couples, and violating Colorado law, or following the law and violating her religious beliefs. Under the Supreme Court’s cases interpreting the First Amendment, Gorsuch concluded, “that is enough, more than enough, to represent an impermissible abridgment of the First Amendment’s right to speak freely.”

Gorsuch conceded that in some cases it may be difficult for courts to determine “what qualifies as expressive activity protected by the First Amendment.” But this is not one of those cases, he insisted, because Colorado and Smith both agree that Smith’s wedding websites would be expressive activity.

And Gorsuch warned that Colorado’s position could lead to “dangerous” consequences. As Chief Judge Timothy Tymkovich noted in his dissent from the 10th Circuit’s decision, Gorsuch wrote, “governments could force ‘an unwilling Muslim movie director to make a film with a Zionist message,’ they could compel ‘an atheist muralist to accept a commission celebrating Evangelical zeal,’ and they could require a gay website designer to create websites for a group advocating against same-sex marriage, so long as these speakers would accept commissions from the public with different messages.”  

Sotomayor’s 38-page dissent argued that the Constitution “contains no right to refuse service to a disfavored group.” Colorado’s public accommodations law, she contended, only bars business owners from discriminating against members of the public based on (among other things) their sexual orientation. It does not regulate or compel speech at all. If a business owner like Smith “offers [her] goods or services to the public,” Sotomayor suggested, she “remains free under state law to decide what messages to include or not to include.” But what Smith can’t do, Sotomayor stressed, is “offer wedding websites to the public yet refuse those same websites to gay and lesbian couples.”

Sotomayor lamented that Friday’s decision “declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class.” More broadly, she continued, “the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.”

The Alliance Defending Freedom, which represented Smith, hailed Friday’s decision. In a statement, lawyer Kristen Waggoner said that the court had “rightly reaffirmed that the government can’t force Americans to say things they don’t believe.” “Disagreement,” Waggoner continued, “isn’t discrimination, and the government can’t mislabel speech as discrimination to censor it.”

Colorado Attorney General Phil Weiser criticized the ruling, saying that it “threatens to destabilize our public marketplace and encourage all kinds of businesses — not just those serving weddings — to claim a First Amendment free speech right to refuse service to certain customers.” Colorado officials, he said, “will work hard to ensure that, within the confines of the Court’s opinion, we take action to hold accountable those who engage in unlawful discrimination.”

This article was originally published at Howe on the Court.