Colorado is trying to force a Christian business owner to create (and thereby, endorse) a message that she disagrees with, but Lorie Smith is fighting back. The Supreme Court heard oral arguments for Smith’s case, 303 Creative v. Elenis, on Monday, December 5, and we are hopeful the high court will uphold her free speech and religious liberty rights.
Smith designs websites for weddings as long as they align with her belief that marriage is a union of one man and one woman. However, the Colorado Anti-Discrimination Act wrongfully forces her to create websites for same-sex marriages. Smith is willing to serve customers regardless of their sexual orientation; she simply refuses to celebrate an unbiblical view of marriage, as is her right.
The hearing lasted for over two hours, and the court debated several questions regarding line-drawing. For example, was Smith’s refusal to create websites for same-sex marriages based on the message of the website or the sexual orientation of the couple? Was her refusal an expression of speech, and therefore protected by the First Amendment, or of conduct?
The left-leaning justices led the questioning of Alliance Defending Freedom’s Kristen Waggoner, who is representing Smith. The justices clearly believed Smith was denying the couple her services based on status.
Justice Elena Kagan asked Brian Fletcher, an attorney representing the state of Colorado, what could happen if the court rules in Smith’s favor. Fletcher argued that the court could allow racial discrimination if it upholds Smith’s right to free speech. He pointed to the Supreme Court’s decision in Runyon v. McCrary, a case in which a private school’s admission policy discriminated against black children. However, this comparison is irrelevant. The court’s decision in Runyon v. McCrary did not involve freedom of speech, and the skin color of a teacher’s students wouldn’t change his pro-segregation message.
Thankfully, the conservative justices seemed to lean in the opposite direction. In a debate with Colorado Solicitor General Eric Olson, Justice Neil Gorsuch referenced Colorado’s treatment of Jack Phillips, who was the subject of a very similar case, as forcing him into a “re-education program.”
Waggoner argued that Smith isn’t just selling a service and engaging in conduct, but is conveying a message with her website designs. She highlighted the fact that the Supreme Court has refused to force someone to convey a message that violates his or her beliefs time and time again in the past.
She asserted that Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston should govern Smith’s case. In this case, the Supreme Court ruled that Massachusetts could not require the St. Patrick’s Day parade organizers to allow an LGBTQ group to participate in the march. Similarly, the government cannot force Smith to celebrate an LGBTQ relationship.
Colorado Solicitor General Eric Olson retorted by pointing to Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), in which the Supreme Court ruled that a law withholding federal funding from colleges that restricted military recruiters’ access to students did not violate the First Amendment. He argued that the FAIR ruling “regulates conduct, not speech” because it set guidelines for what the schools could do rather than what they could say.
Chief Justice John Roberts pushed back on Fletcher’s reliance on FAIR, rightfully stating that the case involved a completely different type of compulsion than the forced speech in Smith’s case.
Then Justice Amy Barrett presented several hypotheticals about other types of marriages or situations that might violate Smith’s beliefs, such as heterosexual marriages that began as adulterous relationships. Waggoner said that Smith would not create websites for those couples either, proving that her refusal is based on the message the website sends, not the status or sexual orientation of the couple.
Justice Barrett noted that Smith says on her website that she fully customizes “the look, feel, theme, message, color palettes, et cetera” of each website she designs.
Gorsuch then voiced the critical distinction of this case, saying, “So, the question isn’t who, it’s what?” Waggoner agreed. This is the question that this case hinges on, and our conservative justices seem to be on the right track.
WFA joined with other pro-religious freedom organizations to file a friend-of-the-court brief before the U.S. Supreme Court in support of Lorie Smith. We are hopeful the conservative justices (which comprise a majority) on the court vote in favor of free speech and religious liberty, as they seem poised to.
If the government can compel Lorie to create a message she disagrees with, it can do the same to any of us. Please pray the high court upholds our First Amendment rights.