- LGBTQ advocates fear a decision will weaken anti-discrimination laws covering businesses.
- Others say an important First Amendment principle is at stake.
- The Supreme Court will hear oral arguments in the case on Monday.
WASHINGTON – A spontaneous celebration erupted outside the Supreme Court in 2015 when a slim majority of the justices legalized same-sex marriage across the nation. Gay pride flags spilled into the court’s plaza and, inside the courtroom, some members of the audience wept and embraced as the gravity of the court’s decision came into focus.
Seven years later, as the high court begins to consider another case implicating same-sex marriage, the mood among supporters of LGBTQ rights is far less jubilant.
The Supreme Court will hear oral arguments Monday in a case involving a Colorado designer who wants to decline to create wedding websites for same-sex couples because those marriages fly in the face of her religious beliefs. The outcome could have profound implications for state anti-discrimination laws as well as the First Amendment.
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After scoring a landmark victory in the same-sex marriage case and another win in 2020 that banned workplace discrimination on the basis of sexual orientation, the outlook for LGBTQ rights at the Supreme Court has dimmed in recent years – especially in suits like the one filed by the website designer that involve conflicts with religious freedom.
Last year, the high court sided with a Catholic foster care agency in Philadelphia that declined to consider same-sex couples as clients. And in its decision in June to overturn Roe v. Wade, Associate Justice Clarence Thomas suggested it may also be time to “reconsider” same-sex marriage – a notion that prompted a political backlash and bipartisan legislation that would require states to recognize those marriages.
“Things move really quickly with this court,” said Mary Bonauto, senior director of civil rights and legal strategies with GLBTQ Legal Advocates & Defenders, who stressed that many of the recent losses for LGBTQ Americans at the court have been narrow. Still, she acknowledged, “it’s hard not to be worried about where the court is going.”
Websites vs. widgets
For advocates such as Bonauto, the case – 303 Creative v. Elenis – represents a broader threat to anti-discrimination laws that regulate public businesses, such as retail stores, hotels and restaurants. After all, if a business may decline to create a website for an LGBTQ couple based on an objection to same-sex marriage, couldn’t it also decline to make a birthday cake for a Catholic family? Or an inter-racial one?
Colorado, like 24 other states, prohibits discrimination based on sexual orientation by businesses.
“There’s a civil rights settlement, as we see it, where the court has been very clear in a number of cases that your preferences, your beliefs, your faith do not countermand the obligation of non-discrimination,” Bonauto said. “This really threatens to disrupt that.”
But those supporting 303 Creative owner Lorie Smith say an important First Amendment principle is at stake: Smith’s sites are a form of speech, not a cookie-cutter product for sale. The government, her supporters say, shouldn’t be able force her to create a site endorsing a message she opposes. If a city bans discrimination based on political affiliation, for instance, could the government punish a musician for refusing to play a Republican campaign rally if that same musician regularly performs for Democrats?
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Dale Carpenter, a law professor at the SMU Dedman School of Law, said a loss for Smith could lead to “a dilution of the freedom of speech,” which he noted has been a critical tool for minority causes – including LGBTQ advocates. Carpenter supports same-sex marriage but submitted a brief with other law professors supporting Smith’s position.
“It’s important to have equality and anti-discrimination,” Carpenter said. “But it’s important to balance that against rights of free speech and expression for those with whom we disagree.”
Carpenter dismisses the idea that the court is retrenching from its 2015 precedent in Obergefell v. Hodges that legalized same-sex marriage. On the contrary, he said, opponents of same-sex marriage have been forced by that decision and public opinion to concede defeat. The debate has now shifted to the implications of that reality.
“Obergefell is probably more secure,” he said. “We’re gradually feeling our way to a settlement that is workable, fair and preserves the strong interests of both sides.”
A decision is expected next year.
Bakers, florists and website makers
For religious groups backing Smith, the case represents something like a do-over.
Four years ago, a 7-2 majority of the Supreme Court sided with a Colorado baker who refused to create a custom wedding cake for a same-sex couple. But that decision was focused narrowly on how the state’s civil rights commission treated the baker, Jack Phillips. The court did not rule on broader questions about where to draw the line between a business owner’s religious freedom and LGBTQ rights.
The lack of clarity on that issue has led to other lawsuits, including from a florist in Washington state who declined to create an arrangement for a same-sex wedding. The Supreme Court declined to hear that case last year.
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Smith, who is being represented by the same group that backed Phillips, asked the Supreme Court to decide whether Colorado’s requirement violated her First Amendment right to exercise her religion without government interference as well as her right to free speech. The high court limited its review to only the speech issue.
A three-judge panel of the Denver-based U.S. Court of Appeals for the 10th Circuit last year ruled against Smith. The court agreed that her websites are a form of speech. It also said the state’s anti-discrimination law compelled Smith to create speech that celebrated same-sex marriage. But in a 2-1 ruling, the court said that Colorado had an interest in preventing discrimination and ensuring “equal access” to goods and services.
And so it upheld Colorado’s law.
Chief Justice John Roberts predicted such lawsuits between LGBTQ Americans and religious business owners. For millions of Americans, the court’s 2015 ruling in Obergefell reflected an evolution the nation had already undergone in its views on same-sex marriage. But Roberts, one of four justices who dissented in the case, warned of the potential for conflicts with business owners like Smith.
Since 2015, two of the associate justices in the Obergefell majority – Anthony Kennedy and Ruth Bader Ginsburg – have been replaced by more conservative successors.
“Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage,” Roberts wrote. “There is little doubt that these and similar questions will soon be before this court.”