303 Creative Case is About Free Speech, Not Discrimination

Photo by Phil Roeder, CC BY 2.0 , via Wikimedia Commons

The Supreme Court heard oral arguments in the case of 303 Creative LLC v. Elenis yesterday. This case centers around a Colorado law that bans businesses from discriminating against gay people. Lorie Smith, the owner of a website design company, sued to overturn the law on First Amendment grounds. Under the Constitution and legal precedent, there should be only one outcome in this case.

Smith wanted to expand her business to wedding websites. As SCOTUSblog describes, “Smith is a devout Christian who believes that marriage ‘is only between one man and one woman.’ So although Smith wants to expand her business to include wedding websites, she does not want to design websites for same-sex weddings, and she wants to post a message on her own website to make that clear.” This message would place her in violation of the law.

If this case sounds familiar, it’s because it is. Just four years ago, the Supreme Court heard a similar case, also from Colorado. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court ruled that a Colorado agency attempting to enforce the same anti-discrimination law “showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection.”

However, despite the precedent, a district court ruled against her lawsuit since Smith had not yet been found to be in violation of the anti-discrimination law. She appealed and the Supreme Court agreed to hear the case on the free speech question but not the free exercise question.

This case should be a clear-cut victory for the First Amendment. Government restriction of speech is precisely what the First Amendment is about. (Even though the Bill of Rights restricts explicitly the federal government, the first 10 amendments have also been extended to restrain the states through the incorporation doctrine.)

As we should all know, the First Amendment protects both the right to free speech and the freedom of religion. Both are applicable here.

In the United States, citizens have a broad latitude to claim freedom of religion and freedom of conscience for sincerely-held religious beliefs. In several recent cases, sincerely-held religious beliefs have won out over state laws, but the freedom of religion, like anything else, is not absolute.

One area where religion is not a get-out-of-jail-free card is racial discrimination. In the amusingly named 1968 case of Newman v. Piggie Park (“Newman!”), the Supreme Court refused to uphold the barbecue restaurant owner’s claim that his religion did not condone the mixing of the races.

The Court upheld the district court’s ruling stating, “Undoubtedly defendant Bessinger has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens. This court refuses to lend credence or support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs.”

So why is this case different than Piggie Park?

Despite what you may have heard, 303 Creative is not about discriminating against the LGBTQ community. It’s about the business owner’s right to refuse a specific type of business.

As SCOTUSblog explains, Smith is not seeking the right to refuse service to gays. The business owner says that she would “happily” design a website for an animal shelter owned by a gay customer. She does, however, want the right to refuse website orders that would conflict with her Christian beliefs. The belief that marriage “is only between one man and one woman” is part of those beliefs.

The state at least partially agrees with Smith. Colorado claims that the law merely regulates sales and does not mandate or ban any speech. In the state’s view, the law holds that any product being sold must be sold to all customers. In one hypothetical, the state points out that a Hindu calligrapher would not be required to create a product with a Christian message, but if the business did create such a product, it would be required to sell it to everyone.

Therein lies the rub. The wedding websites are personalized and not off-the-shelf products. Each product is unique.

A ruling for Colorado would require Smith to specifically craft an individual website for same-sex couples in addition to prohibiting her from posting a message on her own website stating her business policy. So, on the one hand, a private business would be mandated to engage in speech that violates its owner’s conscience and sincerely-held religious beliefs while on the other hand, it would be restricted from posting a message that conveyed its own principles. This outcome would not be consistent with the First Amendment.

But what about the same-sex couples who might be harmed by 303 Creative’s business decision? First, there are other options for websites. The simplest solution would be for these couples to find a web designer who wants their business, rather than pressuring someone to work for them against their will.

Rather than restricting the free speech of Christian business owners, people who believe that the company is engaging in immoral and unethical discrimination might do better to use their own First Amendment rights and engage in protests and boycotts.

As Justice Brandeis once wrote, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.”

Rather than Piggie Park, this case seems more similar to Stormans, Inc. v. Wiesman from 2016. A Washington law prohibited pharmacists from refusing to fill prescriptions “because its owner objects to delivery on religious, moral, or other personal grounds,” but the owners of a local pharmacy refused to fill prescriptions for abortifacient drugs. In his ruling for the pharmacist Stormans, Justice Alito noted that there were other local pharmacies and that the Stormans had even offered referrals.

In the ruling, Alito quoted another Supreme Court case, Church of Lukumi Babalu Aye v. City of Hialeah (1993), which stated, “The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures.”

From time to time, religious freedom is going to conflict with well-meaning government mandates. Sometimes, maybe even often, these exercises of religious freedom are going to be unpopular and may seem bigoted. They may not represent mainstream religious doctrine and may not even make sense.

None of that matters.

What does matter is that the state must have a compelling interest in forcing someone to violate their conscience. This is not an insurmountable obstacle. For example, the Supreme Court has refused to strike down vaccination mandates without religious exemptions.

The question before the Court now is whether Colorado has a compelling interest in not allowing Lorie Smith to post a message on her website refusing business related to same-sex weddings. I don’t believe that it does, and I fully expect the Court to rule against the Colorado law.