Business

Supreme Court Rules Web Designer Can Deny Services To Same-Sex Couples

July 2, 2023

Topline

The Supreme Court ruled Friday in favor of a Colorado-based Web designer who’s opposed to creating websites for same-sex weddings, saying the state’s anti-discrimination law violates the First Amendment, a sweeping ruling that’s likely to make it easier for business owners to discriminate against LGBTQ customers or other groups.

Supporters of Web designer Lorie Smith and counter-protesters demonstrate in front of the U.S. … [+] Supreme Court Building on December 5, 2022, in Washington, D.C.

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Key Facts

The court ruled 6-3 in favor of wedding website designer Lorie Smith, who argued that Colorado’s anti-discrimination laws violated her rights by forcing her to create websites for same-sex couples and compelling her to endorse their marriage through her work, violating her First Amendment rights as an artist.

Colorado argued the state’s anti-discrimination law is sound because it still allows her to express her views against same-sex marriage, just not for her business to refuse services—and because the case was hypothetical, as it was not confirmed that any same-sex couples had actually asked Smith yet to create a website for them.

The court found that Colorado’s anti-discrimination law violated the First Amendment because the law forced Smith to “create expressive designs speaking messages with which the designer disagrees,” with Justice Neil Gorsuch writing for the court that the state “seeks to compel speech [Smith] does not wish to provide.”

Smith’s wedding websites are “pure speech” that’s protected under the First Amendment, the court ruled, noting they communicate ideas and incorporate her own speech, because they include original stories and artwork she writes.

The court disagreed with Colorado’s argument that she should be required to create same-sex wedding websites because they’re being made as part of a business, noting, “many of the world’s great works of literature and art were created with an expectation of compensation.”

The court’s three liberal justices dissented from the ruling, which Justice Sonia Sotomayor wrote was “profoundly wrong.”

What To Watch For

The court’s opinion is expected to make it easier for businesses to discriminate against LGBTQ customers and other groups, critics contend, assuming they have the same kind of expressive speech that the court ruled Smith did as a designer. University of Pennsylvania law professor Tobias Wolff noted in an amicus brief that a ruling in Smith’s favor could mean that “any business that sells goods or services involving skill with images or words could argue for a similar exemption” to anti-discrimination laws. Liberal justices on the court noted that a ruling for Smith could lead to discrimination against other groups like Black or disabled Americans, with Sotomayor’s dissent arguing the ruling could “allow the exclusion of other groups from many services,” such as interracial couples or disabled Americans.

Chief Critic

“Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class,” Sotomayor wrote in her dissent. “Our Constitution contains no right to refuse service to a disfavored group.”

Surprising Fact

The court’s ruling in 303 Creative came a day after news reports emerged that found part of the case’s foundation appears to be false. Smith’s lawsuit cites an inquiry made to her website from a man named Stewart, who said he was gay and wanted Smith’s help in creating designs for his same-sex wedding to his partner Mike. Stewart, whose email address and telephone number match up with the ones listed on the message to Smith, told the New Republic and the Guardian Thursday that he never contacted Smith, however, and has been married to a woman for 15 years. Alliance for Defending Freedom, the conservative legal group backing Smith’s lawsuit, told the Guardian that Smith did not respond to Stewart’s purported message, and she “had no reason to believe the request to celebrate a same-sex wedding submitted to her website wasn’t a true request.”

Key Background

Smith went to the Supreme Court after federal district and appeals courts had both ruled in Colorado’s favor and upheld the state’s anti-discrimination law. The ruling is the latest in a string of recent decisions concerning religious liberty from the 6-3 conservative Supreme Court, including rulings last term that sided with a high school football coach who was penalized for praying and ruled state funds should be allowed to be used on religious schools. The court also ruled Thursday to throw out a ruling against a former postal worker who argued the U.S. Postal Service discriminated against him by accommodating his request to take off on Sundays due to his religion. The 303 Creative case also marks the Supreme Court’s second high-profile case involving Colorado’s anti-discrimination law specifically, following Masterpiece Cakeshop v. Colorado Civil Rights Commission. In that case, which was decided in 2018 and brought by the same group as the 303 Creative case, the court narrowly ruled in favor of a cake maker who refused to provide services for a same-sex marriage, striking down the Colorado government’s conduct in evaluating the baker’s case. The justices did not rule on Colorado’s law itself, however, or give guidance on how other disputes over anti-discrimination laws should be resolved.

Tangent

The 303 Creative case comes after the Supreme Court’s ruling last term in Dobbs v. Jackson Women’s Health Organization, which dismantled the federal right to an abortion, raised speculation the court could become more hostile to LGBTQ rights. The court’s overturning of Roe v. Wade means it’s possible the court could overturn other rulings that were decided on the same legal grounds, including Obergefell v. Hodges, which legalized same-sex marriage, Justice Clarence Thomas suggested in a concurring opinion. A bill that recognizes same-sex marriages—even in states that could outlaw them should Obergefell be overturned—was signed into law in December in response. Justice Samuel Alito insisted in the court’s majority opinion in the Dobbs case that rulings like Obergefell weren’t at risk, writing: “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”