By Kanav Narayan Sahgal

In 2022, the Supreme Court of the United States heard significant cases involving a range of sensitive cultural issues including, but not limited to, abortion rights (Dobbs v. Jackson Women's Health Organization), gun rights (New York State Rifle & Pistol Association, Inc. v. Bruen), religious freedom (Kennedy v. Bremerton School District), and vaccine regulations (National Federation of Independent Business v. Department of Labor). Also on the docket was a case on gay rights and free speech: 303 Creative LLC v. Elenis- for which oral arguments concluded on 5th December 2022 and a ruling is expected sometime this year.

This particular case is important because it deals with a longstanding tension undergirding American society today- that between free speech and religious liberty on the one hand and gay rights on the other; more specifically, the public acceptance of same-sex marriage.

Even though the U.S Supreme Court legalized same-sex marriage nationwide on June 26, 2015 in its landmark Obergefell v. Hodges verdict, it came with a caveat.

In Obergefell, the Court held that while "the right to marry was "fundamental under the Constitution and applied in equal force to same-sex couples.....those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned".

This verdict birthed the ongoing tussle of free speech, religious liberty, and the public acceptance of same-sex marriage, because even though Obergefell may have made same-sex marriage the new law of the land, it simultaneously upheld an individual’s intention to uphold traditional marriage on religious and moral grounds. After all, the First Amendment of the Constitution protects speech and faith.

It is precisely these frictions that are at the heart of the new Supreme Court case- 303 Creative LLC v. Elenis.

Background of the Case

303 Creative involves Lorie, a Catholic website designer from Colorado who creates online content "consistent with her faith".

She intends to do two things: (1) expand her website business into the wedding industry and start designing wedding websites consistent with her understanding of marriage (i.e. traditional marriage as a union between one man and one woman only) and (2) post a statement on her website explaining that she can only "speak" messages consistent with her faith. Hence, she would not be able to design wedding websites celebrating same-sex marriages.

However, the issue arose with Colorado's Anti-Discrimination Act (CADA) which prohibits places of public accommodations from discriminating on the basis of sexual orientation (among other protected classes).

According to Smith’s lawyers, CADA would not only “compel” Smith to create “speech” (custom wedding websites announcing or celebrating same-sex marriages) inconsistent with her religious beliefs, but would also prohibit her from posting the statement affirming her acceptance of the traditional definition of marriage.

The lower courts applied the strict scrutiny test on CADA- the highest standard of judicial review to evaluate the constitutionality of governmental discrimination- and sided with Colorado, holding that CADA was both correctly applied to Smith’s business and was constitutional.

However, Smith’s lawyers argued that by upholding CADA, the lower court was effectively “forcing” her to convey messages that violated her First Amendment rights and also restricting her from explaining her faith to the public. Hence, she appealed to the Supreme Court.

Three questions were presented before the Court, out of which the writ of certiorari to granted to one, namely, whether the application of public accommodation laws like CADA that compel artists to speak or stay silent, violates the free speech clause of the First Amendment.

The bare text of the free speech clause in the First Amendment reads: “Congress shall make no law...abridging the freedom of speech.”

Colorado sought to dismiss Smith’s petition altogether but failed. Once amici briefs and supplemental responses by the plaintiff (Smith) and the respondent (Colorado) were in, oral arguments commenced on 5th December 2022. Typically oral arguments give listeners a sense of where the Court is heading with the case. Each Justice asked a unique set of questions to the lawyers, and finally, after a long, almost two-and-a-half-hour back-and-forth, oral arguments concluded.

Oral Arguments: Key Takeaways

Oral arguments demonstrated the divergent ways the conservative and liberal Justices on the bench viewed the very question before the Court.

The question at hand essentially looked at whether Smith’s business was being “compelled” under CADA to speak or stay silent on an issue that conflicted with her deeply held biblical beliefs about the traditional definition of marriage - one that Obergefell ostensibly protected. But where the Justices seemed to diverge on was the exact issue that the Court was meant to draw the fine line in the sand on. The key issue at stake appeared to be discrimination for the liberal wing and free speech for the conservative wing.

As Justice Sotomayor put it, if the Court ruled in favor of Smith, this would be the first time in the Court's history that a commercial business open to the public could refuse to serve a customer based on race, sex, religion, or sexual orientation.

She rationalized this by stating that just as one could have deeply held objections to same-sex marriage, one too could have similar objections to gender transitions and thereby refuse transgender customers. Similar objections could be raised to inter-racial marriage, and so on. So where should the Court draw the line? Would it draw the line by only “permitting discrimination” against same-sex couples, or extend/shorten the line to include other groups to ensure consistency?

The conservative Justices' views was somewhat different. In an artful hypothetical, Justice Amy Coney Barrett asked Smith’s lawyer whether Smith would be willing to design a wedding website for a heterosexual couple who wished to announce that they fell in love while having an extra-marital affair at work and that they now decided that they want to get married.

The lawyer answered no, thus demonstrating that Smith’s objection wasn’t only to same-sex couples, but to anyone- gay or straight- whose wedding message was inconsistent with her faith.

On the point of inter-racial couples being targets of potential discrimination, Justice Samuel Alito pointed out that even though Obergefell drew some parallels with Loving v. Virginia- a landmark 1967 case that lifted bans on interracial marriage nationwide- the Obergefell Court was clear that religious objections to inter-religious marriages were not the same as those to same-sex marriage.

Thus, the issue before the conservative wing seemed not one about discrimination against gay people or unequal treatment under the law, but instead about the limits of state-sanctioned “compelled” speech that infringed on one’s First Amendment Rights. The question they seemed to want to answer was to what extent the Court could permit or refuse speech when it conflicted with one’s deeply held religious beliefs, and whether a general rule could be framed around this in the context of public accommodations.

Where the Supreme Court Leans: The relevance of Precedence in Obergefell and Masterpiece Cakeshop

Conservative Justices currently make up a super-majority in the Supreme Court. While the ideological split was somewhat even during President Obama’s second term, the major shift to the right largely took place during Donald Trump’s one-term presidency when he first replaced the late Justice Antonin Scalia with Neil Gorsuch, then the retiring Justice Anthony Kennedy with Brett Kavanaugh and finally, the late Justice Ruth Bader Ginsberg with Amy Coney Barrett a few weeks before the 2020 presidential election (which Trump eventually lost).

As it stands today, only two Obama appointees and one Biden appointee make up the liberal wing of the Court- the rest lean to the right. If we suppose the past is to become prologue, then the 2022 verdicts in Dobbs, New York State Rifle & Pistol Association, Kennedy and National Federation of Independent Business show us that on sensitive cultural issues, the Court is largely just as divided as the public. Each of those cases was determined by a 6-3 vote, predictably along ideological lines, with the conservatives winning the votes.

Also a matter of concern for gay rights activists is the fact that a similar case from 2018 that involved a Colorado baker's refusal to bake a wedding cake for a same-sex couple also due to religious objections was upheld by the Supreme Court in a wider 7-2 ruling - with 2 liberal and 1 moderate justice joining in to support the other 4 conservative justices. Of the 2 lone dissenters, only Justice Sotomayor remains on the bench today.

That case (Masterpiece Cakeshop v. Colorado Civil Rights Commission)  also concerned CADA and looked at whether the Colorado bakers' refusal to bake the wedding cake for the same-sex couple was in line with CADA or not. In a narrow ruling, the Court held that the baker’s refusal to bake the cake was indeed based on his sincerely held religious beliefs and convictions- those that were protected by the state and could be limited under certain circumstances.

However, in his particular case, the Court held that the Colorado Civil Rights Commission acted with animus against the baker and did not treat his religious claims with neutrality. Thus, on that technicality, the Court ruled in favour of the baker and thus, against the gay couple. Although this was a narrow ruling, it sent shockwaves to the gay community, making it clear that the delicate balance between religious freedom, free speech, and gay rights hung in a balance.

While the facts of 303 Creative are quite different from Masterpiece Cakeshop, both concern CADA, public accommodation law, free speech, and gay rights.

Moreover, with Obergefell condoning religious objection to same-sex marriage and Masterpiece Cakeshop as a kind of precedent, the Court seems poised to vote in favor of Smith. If the Court does so, Justice Sotomayor’s prediction will indeed come true. 303 Creative will be remembered as the first case in the Court’s history to have legitimized discrimination against sexual minorities as far as accessing public commercial businesses are concerned.

Kanav Narayan Sahgal is Communications Manager at Nyaaya.

Vidhispeaks is a column on law and policy curated by Vidhi. The views expressed are of the fellow and do not reflect the views of Vidhi or Bar & Bench.