On Monday, the Supreme Court heard oral arguments on 303 Creative v. Elenis. This case involved a conflict between Colorado’s civil rights bureaucracy & a religious small-business owner who believes in the traditional view that marriage is between one man & one woman.
Lorie Smith, the owner of 303 Creative in Colorado, is the lead plaintiff. Smith was looking to expand her business and offer website design services for engaged couples involved in the wedding-planning process. Smith is a Christian and won’t create websites for marriages that are not in accordance with biblical norms. According to her attorney, she wanted to put a notice on her website stating that and to “respectfully” direct people involved in such unions to other graphic designers in the area.
Smith hadn’t yet expanded her business to website design but was afraid that the state of Colorado might apply its anti-discrimination laws to stop her exercising her conscience rights. Colorado’s antidiscrimination statute makes denying services to people illegal on the basis that they are members of a protected group. The statute has been used in the past to stop religious business owners refusing to celebrate “marriages” of same-sex couples.
The Supreme Court ruled in favor Jack Phillips, Masterpiece Cakeshop’s founder, when Colorado’s civil rights law was being challenged. He refused to bake a wedding cake that would have been suitable for two men who were entering into a same-sex marriage. In resolving Phillips’s matter, the Court ruled 7-2 based on the argument that the Colorado Civil Rights Commission’s hostility “was inconsistent with the First Amendment guarantee to our laws be applied in an unbiased manner towards religion”.
The Court used the example of a Colorado commissioner to show the Commission’s hostility. He said that appeals to religion such as Phillips’s had been used “to justify all kinds of discrimination throughout the history”, including the Holocaust. Phillips’ appeal to religion was a prime example of “the most deplorable pieces of rhetoric that people could use.”
Phillips was ruled in favor by the Court on procedural grounds. The majority opinion was authored by Chief Justice Anthony Kennedy, who stated that it was inappropriate for a Commission charged to the solemn responsibility of fair enforcement of Colorado’s antidiscrimination laws to dismiss religious believers. The majority did not find Phillips’s case substantively and instead focused its attention on the civil rights commission’s behavior. The Court instructed Colorado to pursue him again, but not to call him a Nazi.
Oral arguments in 303 Creative were won by Smith. The Court’s conservative majority appears to be poised for Smith to declare that website design is expressive and thus protected under the First Amendment. However, the arguments were a reminder of how little ground traditional marriage defenders have gained since Obergefell. Many justices impliedly compared traditional marriage as a union between one person and one woman for the procreation and rearing children to opposition to interracial and opposition to people with disabilities marrying. Justice Jackson created a bizarre hypothetical that involved a person refusing black children access at the mall’s Christmas photography station. This was with the subtle hint that this discrimination is similar the plaintiff’s view of marriage.
Smith’s attorney, the Colorado attorney general and Smith’s attorney traded arguments over the nature of Smith’s conduct. Smith’s attorney claimed that website design is speech and cannot be forced. The solicitor general claimed that gays/lesbians are protected classes and that failing to recognize their unions as a marriage is discrimination based on status. Both sides appealed to race-based hypotheticals. The attorney for the United States claimed Smith’s conduct would be open to similar conduct from those who oppose interracial marriage. Smith’s attorney claimed Smith would have to design the website if he was allowed to do so. Both sides were more concerned with the implications of Smith’s website design than their clients.
It is understandable that Colorado would appeal to the United States. The specter Jim Crow segregation seems more powerful than the argument that small-business owners of religious faith should be forced into submission. Smith’s lawyer must play the game, which I understand. Wouldn’t it be better for her to argue that interracial marriages and same-sex unions are completely different, and that one is not married and the other is?
Smith’s lawyer stayed neutral on First Amendment protections for expressive behavior, but the United States and Colorado presented a stronger case: those who like groups deserve protection, while those who hate them do not.
Sign up today
Receive weekly emails to your inbox
Justice Amy Coney Barrett, and U.S. Barrett asked Solicitor General Brian Fletcher if a gay web designer should design a website that was for a Christian or Catholic group, whose purpose was to defend traditional marriage.
Justice Fletcher stated, “I don’t believe they do.” “I don’t believe that’s a refusal based upon status.”
There are not two standards, one for gay designers and one for Christian designers. It’s not that you win.
