Supreme Court hears website designer’s case for refusing wedding sites for same-sex couples

On Dec. 5, 2022, the U.S. Supreme Court heard oral arguments in 303 Creative LLC v. Elenis. The case is being preemptively brought by a Colorado website designer who wishes to create wedding websites, but she does not want to make them for samesex weddings 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.

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.

For more on this case, listen to the Respecting Religion podcast or read the excerpt on page 29 of this magazine.

—Don Byrd, “Latest News” section of BJC’s website