U.S. Supreme Court questions whether a web designer has a Free Speech right to refuse wedding pages for same-sex couples

by | Dec 9, 2022

This week, the U.S. Supreme Court heard oral arguments in 303 Creative LLC, v. Elenis, a case preemptively brought by a Colorado website designer who wishes to create wedding websites, but not for same-sex marriages because of her religious belief that they are “false.” She is asking the Court to overturn — on Free Speech grounds — an appeals court ruling that found her refusal would run afoul of Colorado’s nondiscrimination law, which prohibits businesses that are open to the public from discriminating against customers on the basis of race, religion, gender, or sexual orientation.

During questioning, a majority of the Court sounded poised to side with the website designer and find that requiring her to provide websites for same-sex weddings amounts to compelled speech in violation of the Free Speech guarantee of the First Amendment. But, both justices and advocates alike struggled to articulate a precise framework for how courts should distinguish between discriminating against a customer based on the customer’s sexual orientation — which would not be protected by the First Amendment — and refusing to express a certain message about same-sex marriage, which the First Amendment does protect.

Here, the website designer argues that providing even a boilerplate wedding website for a same-sex couple “transforms” the site into a message of implicit endorsement she finds objectionable. But as the attorney for the United States (which sided with Colorado’s law here) argued, the potential ramifications of this position could reach significantly beyond same-sex marriage. Asked by Justice Elena Kagan to explain this concern, he pointed to a 1976 Supreme Court case (my emphasis):

[Runyon v. McCrary] was about a [private] school that wanted to exclude children of particular races, and it said the reason we want to do this is because segregation is important to our beliefs and that’s what we want to teach. And this Court said you are free to teach segregation in your school, but you can’t act on that belief by excluding children of particular races.


And I think … if Petitioners are right, that case comes out differently as long as the school can come in and say, when we teach, we are expressing messages and those messages change when we express them to students of different races.


I think that’s very troubling. … I do not mean to equate those who have different views about marriage to racists, but the reason why I rely on those hypotheticals is because this Court’s First Amendment jurisprudence does not distinguish between views we find odious and those we respect. The same principles apply in both cases, and if the principles lead to unacceptable places when we consider them in light of odious views, then I think we have to reject those principles even in a case where we sympathize with and respect the views.

Even though this is not a religious liberty matter (the plaintiff initially claimed her Free Exercise rights were violated, but that claim was rejected by the appeals court and specifically not taken up by the Supreme Court), there are significant reasons for religious liberty advocates to care about how this case is decided.  For starters, religious speech should be protected; but so, too, should the right to access the public marketplace without being discriminated against because of one’s faith.  This is a delicate balancing act – with liberty interests on both sides – that requires a carefully crafted legal framework. How the Court decides the case may be as important as which side it lands on. Although the Court may be favoring the website designer here, Brian Fletcher – an attorney from the Justice Department — warned about the possible dangers of tilting the balance too far in that direction:

Granting … a license to discriminate would empower all businesses that offer what they believe to be expressive services, from architects to photographers to consultants, to refuse service to customers because of their disability, sexual orientation, religion, or race. The Free Speech Clause exemption the company seeks here is sweeping because it would apply not just to sincerely held religious beliefs, like those of the company and its owner, but also to all sorts of racist, sexist, and bigoted views. This rule would allow another web design company to say no interracial couples served, an ad agency could refuse women-led businesses, and a tech consulting company could refuse to serve 303 Creative itself because it disagreed with the owner’s religion. This Court should not upend long-settled law that protects the full and equal access of all Americans to our public marketplace.

A decision is expected by June next year. For more on this case, check out the podcast conversation between BJC Executive Director Amanda Tyler and General Counsel Holly Hollman in the latest episode of Respecting Religion.