Article 05 Dec. 2022

Curtis Lawyers Discuss Supreme Court LGBTQ Wedding Case on Law 360

Bias Protections At Stake In High Court LGBTQ Wedding Case

On Dec. 5, the U.S. Supreme Court will hear argument in 303 Creative LLC v. Elenis, a case that could shape the course of anti-discrimination laws and the First Amendment for decades.

Website design company 303 Creative and its owner, Lorie Smith, are challenging provisions of Colorado's Anti-Discrimination Act, or CADA, requiring businesses to sell goods and services to customers regardless of sexual orientation.

Smith wishes to create custom wedding websites, but only for opposite-sex couples, "promoting God's design for marriage," according to her petition to the Supreme Court. She claims that CADA compels her to speak messages celebrating and endorsing same-sex marriage in violation of her right to free speech.

That issue implicates long-standing constitutional doctrines ranging from free speech and freedom of conscience to substantive due process and equal protection. And a ruling in favor of Smith could affect the rights of not only LGBTQ persons, but also others who exercise legal rights that religious believers may find objectionable.

The Lower Courts Uphold CADA Against Smith's First Amendment Challenge

In deciding 303 Creative, the court will need to consider the interplay between three strands of constitutional law: LGBTQ rights, free exercise of religion, and free speech. How the justices rely on these different bodies of law in framing their questions during oral argument may provide insight into how they are approaching this case.

LGBTQ Rights

Over the last three decades, the Supreme Court has recognized the equal rights of LGBTQ persons, grounded in the privacy protections of substantive due process and equal protection principles. The most recent in this line of cases was Obergefell v. Hodges in 2015, which recognized the constitutional right to same-sex marriage.

While Obergefell represented a major victory for LGBTQ rights, the court's dissenting voices raised the specter of an irreconcilable conflict between marriage equality and religious liberty.

Chief Justice John Roberts' dissent highlighted this supposed tension, predicting that "hard questions" would "soon be before this Court," for instance "a religious adoption agency" that "declines to place children with same-sex married couples."

The majority opinion written by former Justice Anthony Kennedy lent credence to that concern by emphasizing that "religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned."

However, the justices seemed to ignore that legalizing same-sex marriage expanded the religious freedom of many believers and entire denominations who have affirmed and blessed same-sex relationships as part of their religious practice long before Obergefell. In fact, several denominations and faith-based groups submitted amicus briefs defending CADA.

Our firm submitted one of those briefs in August on behalf of two faith-based nonprofits founded by Seventh-day Adventists, including LGBTQ Adventists. Thirty-one Adventist leaders across various professions also signed onto the brief.

These amici brought to the court's attention that many LGBTQ persons believe that

marrying someone of the same sex is a matter of conscience and religious belief, and thus respecting their right to marry promotes religious freedom and interreligious tolerance.

That perspective is often missing in the debate over marriage equality and religious liberty, and it will be interesting to see if any of the justices pick up on these concerns at oral argument.

Free Exercise

Although the court declined to hear Smith's free exercise claim, her brief borrows from free exercise cases to support her free speech claim.

For instance, Smith relies on the 2021 Supreme Court case Fulton v. City of Philadelphia, in which the court held that a Catholic charity could not be denied a public contract for refusing to place foster children with same-sex couples, as anticipated by Justice Roberts in Obergefell.

In an opinion authored by Justice Roberts, the court concluded that, under Smith, the nondiscrimination provision in the contract was not generally applicable because the city had the discretion to refuse to place children with certain applicants for nonreligious reasons.

The court further held that the Catholic charity was not a public accommodation because "certification as a foster parent ... is not readily accessible to the public" and because the charity understood the "certification of prospective foster families to be an endorsement of their relationships."

Smith similarly argues that requiring her to create wedding websites for same-sex couples is tantamount to compelling her to endorse same-sex marriage.

But Smith is making that argument as a free speech claim, not as a religious exercise claim. That strategy may come from a perception that the court's conservative majority may view free speech as a way of carving out religious exemptions from neutral laws of general applicability, without overruling Smith.

Indeed, at least two current justices have expressed support for this theory.

In Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission in 2018, a Colorado baker refused to make a wedding cake for a same-sex couple. Ultimately, the court side­stepped the free speech issue and instead sent the case back to the state court for reconsideration because anti-religious hostility may have tainted the state's enforcement action.

In a concurring opinion, however, Justice Clarence Thomas, joined by Justice Neil Gorsuch, indicated that they would have ruled in favor of the baker on free speech grounds.

Free Speech

Three free speech cases are particularly important to 303 Creative. In Rumsfeld v. Forum for Academic & Institutional Rights Inc. in 2006, the Supreme Court upheld a statute denying federal funds to colleges and universities that excluded military recruiters from their campuses in protest of "don't ask, don't tell."

The court rejected the argument that the statute unconstitutionally compelled schools to speak pro-military messages, noting that the law only required schools to provide access to military recruiters to the same extent as others.

The court expressly analogized this statute to civil rights laws, explaining that requiring an employer to take down a sign reading "White Applicants Only" is not regulation of speech but conduct, and that:

Compelling a law school that sends scheduling e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah's Witness to display the motto "Live Free or Die."

Colorado argues that the Forum for Academic & Institutional Rights ruling governs Smith's free speech claim because CADA does not compel her to alter her designs, only that she offer the same wedding websites to same-sex couples.

Colorado further argues that Smith's proposed statement indicating she will only create wedding websites for opposite-sex couples is equivalent to a "White Applicants Only" sign — prohibited conduct, not protected speech.

By contrast, Smith leans heavily on the Supreme Court's 1995 Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston Inc. case, which held that Boston's anti­discrimination ordinance could not be applied to require a private group organizing a St. Patrick's Day parade to include a pride float because that would alter the message the organizers wished to convey.

However, the court did not reach the issue of whether same-sex couples could be excluded on the theory that their presence alone would communicate an endorsement of same-sex relationships.

Smith also relies on the 2018 Supreme Court case National Institute of Family and Life Advocates v. Becerra, which cast doubt on state regulations requiring anti-abortion pregnancy centers to post information about state-sponsored abortion services.

Although National Institute of Family and Life Advocates was decided after Forum for Academic & Institutional Rights, it does not distinguish or even cite that ruling.

One possible difference may be that, in Forum for Academic & Institutional Rights, the schools were only required to make their facilities and communication channels available, so military recruiters could convey their own messages, whereas in National Institute of Family and Life Advocates, the healthcare centers were asked to communicate the state's message.

That could be a critical distinction. The court could rule that CADA cannot be applied to compel Smith to speak the state's pro-LGBTQ messages on 303 Creative's website, but may be enforced to the extent that Smith refuses to provide same-sex couples equal access to her wedding website services so they can convey their own messages.

Broader Implications: Will Free Speech Become a Free Pass to Discriminate?

Whether the court announces a narrow or broad rule in 303 Creative, a decision in favor of Smith will likely bolster the claims of other religious business owners seeking speech-based exemptions from anti-discrimination laws and other regulations.

Already, an Oregon baker, who was fined for refusing to make a wedding cake for a lesbian couple, has filed a petition asking the court to join the case with 303 Creative or hold it until 303 Creative has been decided.

Either way, the court will need to grapple with a host of questions presented by these claims:

  • Which goods and services are expressive enough to qualify as protected speech?
  • Does the difference depend on the degree of creative input or customization or the use of words and symbols?
  • Is same-sex marriage unique or could other lawful activities also be subject to religiously motivated discrimination?

Indeed, if a website designer who wishes to support "God's design for marriage" has the right to turn away same-sex couples, what would stop a realtor who believes she is called to defend "God's design for the family" from refusing to show houses to same-sex or even interracial couples for fear of being seen as endorsing their family structure?

What about a photographer who refuses to take professional headshots of women because of his religious belief that a woman's place is in the home? There seems to be no obvious limiting principle.

Similar questions are being raised in other areas. For instance, a New York state court issued an injunction in June ordering Yeshiva University, a Jewish university open to the public, to officially recognize a Jewish LGBTQ student group on campus on the same terms as other student groups in Yeshiva University and President Ari Berman v. YU Pride Alliance, Molly Meisels, Doniel Weinreich, Amitai Miller and Anonymous.

The Supreme Court declined to stay the injunction on procedural grounds, but it strongly signaled that the university could deny official recognition to an LGBTQ student group for religious reasons.

Still, the question remains whether religious schools that offer a broad range of nonreligious studies, admit students regardless of religion or sexual orientation, and accept state funding for their educational programs can treat LGBTQ students as second-class citizens on their campuses, without losing their state funding or tax-exempt status.

These issues might be resolved or at least shelved for now if Congress passes the Respect for Marriage Act, which codifies aspects of Obergefell and adds another layer of protection for religious nonprofits that refuse to accommodate same-sex marriages.

In sum, the Supreme Court's decision in 303 Creative is about more than just wedding websites for same-sex marriages. It could create a new category of protected speech for religiously motivated discrimination and, in doing so, significantly erode the state's power to enforce anti-discrimination laws in places that are open to the public.

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