Supreme Court to revisit LGBTQ rights – this time with a wedding website designer, not a baker

A simmering, difficult, and timely question returns to the Supreme Court this fall: What happens when freedom of speech and civil rights collide?

The court took up similar questions four years ago in the famous “gay wedding cake” case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, about a baker who refused to provide services for a same-sex couple based on his religious beliefs. The justices ruled in his favor, but did so on narrow grounds, sidestepping the direct constitutional questions over freedom of religion and free speech.

Now, another case from Colorado about free speech and same-sex marriage has made its way to the court: 303 Creative v. Elenis. As a professor of law and education who pays particular attention to First Amendment issues, I see the case highlighting tension between two competing fundamental interests – interests that seem to clash routinely in 21st-century America.

On Aug. 30, 2022, for example, another similar case was decided, this time in Kentucky. A federal trial court ruled in favor of a Louisville wedding photographer who sued over the city’s “Fairness Ordinance,” which prohibits discrimination based on sexual orientation or gender identity. She argued that the law violated her religious beliefs and right to free speech, and the court agreed, explaining that “the government may not force singers or writers or photographers to articulate messages they don’t support.”

Freedom to speak – or stay silent

Graphic artist Lorie Smith is the founder and owner of a studio called 303 Creative. According to court documents, Smith is generally willing to serve LGBTQ clients. However, she intends to begin designing wedding websites and is unwilling to create them for same-sex couples, saying it would go against her Christian beliefs.

Under Colorado’s Anti-Discrimination Act, though, it is discriminatory and illegal to refuse services to someone based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”

In 2016, Smith sued the members of the state’s Civil Rights Commission and Colorado’s attorney general. Smith argued that being required to prepare a same-sex wedding website would violate her First Amendment rights by forcing her to speak – what lawyers refer to as “compelled speech.”

The constitutional right to freedom of “speech” has historically been understood to cover a variety of ways people express themselves, including in writing, art and protest. But not only does it protect the right to protect one’s speech, it also safeguards the right to not speak in the first place.

Through her attorneys, Smith also maintained that requiring her to create a website would violate her First Amendment right to the free exercise of religion.

Path to SCOTUS

The federal trial court in Colorado rejected Smith’s request to block the anti-discrimination law in 2019. When she appealed, the circuit court agreed with the previous ruling: She could not refuse to create websites for same-sex weddings, even if it would have gone against her beliefs.

Protecting diverse viewpoints is “a good in and of itself,” the court wrote, but combating discrimination “is, like individual autonomy, ‘essential’ to our democratic ideals.”

In a lengthy dissent, the chief judge highlighted Smith’s claim of compelled speech, criticizing the court for taking “the remarkable – and novel – stance that the government may force Ms. Smith to produce messages that violate her conscience.”

Smith appealed to the Supreme Court, which, in February 2022, agreed to hear her claim, limited to the issue of free speech, not freedom of religion. The question for the nine justices to decide will be “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”