Nearly four years after the Supreme Court declined to decide whether compelling a Colorado baker to bake a cake for same-sex couples would violate his right to freedom of speech, the justices agreed to take up a similar question in another case from Colorado, this time involving a website designer. The justices’ decision to grant review in 303 Creative LLC v. Elenis sets up yet another major ruling on the intersection between LGBTQ rights and religious beliefs.
The case that the court agreed on Tuesday to hear was filed by Lorie Smith, who owns a graphic design firm and wants to expand her business to include wedding websites. Because she opposes same-sex marriage on religious grounds, Smith does not want to design websites for same-sex weddings, and she wants to post a message on her own website to explain that. But a Colorado law prohibits businesses that are open to the public from discriminating against gay people or announcing their intent to do so.
Smith went to federal court, seeking a ruling that Colorado could not enforce its anti-discrimination law against her. The U.S. Court of Appeals for the 10th Circuit agreed that Smith’s “creation of wedding websites is pure speech,” and that Colorado law compels Smith to create speech that she would otherwise refuse. But the anti-discrimination law does not violate the Constitution in this case, the court of appeals concluded, because the law is narrowly tailored to the state’s interest in ensuring that LGBTQ customers have access to the unique services that Smith provides. Same-sex couples might be able to have their wedding websites designed by someone else, the court of appeals explained, but those customers “will never be able to obtain wedding-related services of the same quality and nature as those that” Smith offers.
After considering the case at four consecutive conferences, the justices agreed to take up Smith’s claim under the free speech clause of the First Amendment. They declined to review two other questions that Smith raised in her petition for review: whether requiring Smith to create custom websites for same-sex couples violates the First Amendment’s free exercise clause, and whether the Supreme Court should overrule its 1990 decision in Employment Division v. Smith, which held that government actions usually do not violate the free exercise clause as long as they are neutral and apply to everyone. The case nonetheless promises to be a major ruling because it may clarify when business owners who are engaged in expressive activities are entitled to religious-based exemptions from laws protecting civil rights.
Unlike Biden v. Texas, the case that the justices agreed to fast-track on Friday, involving the Biden administration’s efforts to end the Trump-era program known as the “remain in Mexico” policy, the justices did not set 303 Creative for argument during their April argument session or otherwise give any sign that they planned to expedite the briefing. The case will therefore presumably be argued during the 2022-23 argument session, joining the pair of cases involving the role of race in university admissions and the challenge to Alabama’s redistricting plan in what already promises to be another blockbuster term.
This article is also published on SCOTUSblog.