Jurisprudence

The Easy-to-Miss Twist That Makes the Supreme Court’s New Gay Rights Case So Strange

A graphic designer refuses to make custom websites for same-sex weddings. Colorado says that’s fine.

Rainbow flags and trans flags held by protesters in front of police officers.
Police officers stand between gay rights supporters and supporters of web designer Lorie Smith in front of the Supreme Court on December 05, 2022 in Washington, D.C. Anna Moneymaker/Getty Images

When you first hear the facts of 303 Creative v. Elenis, you may be stirred to sympathy toward the plaintiff. According to her lawyers at Alliance Defending Freedom, Lorie Smith is just a humble website designer trying to make a living in accordance with her Christian beliefs. That means she must respectfully decline to create a wedding website for any same-sex couple, as such unions contradict her faith. Intolerant bureaucrats in Colorado are threatening to punish her for these deeply held beliefs. And so she has reluctantly asked the Supreme Court to shield her from this persecution.

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That’s the story that ADF told the Supreme Court on Monday during oral arguments in 303 Creative. It’s the story that the court probably will adopt if it sides with Lorie Smith, as it very likely will. But it bears, at best, only a passing resemblance to the truth.

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The true origin story of 303 Creative is much less sympathetic than the lawyer-crafted narrative. Before this litigation, Lorie Smith appeared to be a normal website designer who advertised her services to all potential customers. In 2016, after ADF took her on as a client, she rebranded as a conservative Christian who channeled her faith in God through her work. Indeed, her revamped website included language seemingly finessed to transform her into a First Amendment test case, explaining that her “expressive content … communicate[s] ideas or messages.” Also worth noting:  No same-sex couple has ever asked Smith to make them a wedding website; in fact, she has never made a wedding website for anyone. Her work to date focuses on local politicians, dog breeders, contractors, and houses of worship—not celebrations of life events. Nonetheless, ADF sued Colorado on Smith’s behalf in 2016, challenging a state law that bars anti-gay discrimination in public accommodations. Smith one day might be asked to make a same-sex couple’s website, ADF asserted. And when that day comes, she wants the right to say no.

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303 Creative was one of many cases that ADF took on after 2016 to undermine LGBTQ non-discrimination laws. The organization was trying to argue that these laws violate the First Amendment, at least when applied to wedding goods and services. One such case, Masterpiece Cakeshop, reached the Supreme Court—but it was not resolved on the merits in the way ADF preferred. Instead, the justices got tripped up on the question of whether baking a cake constituted free speech, and decided it on other grounds. Others involved similar gray areas—a florist, a photographer—and fizzled out in lower court. 303 Creative had the benefit of involving “pure speech” rather than what lawyers call “expressive conduct” (like making a floral arrangement). ADF wanted this as a black-and-white dispute about Colorado compelling Smith to express a message in support of same-sex marriage that infringes on her conscience.

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But 303 Creative is not, in fact, that case. Why? Because Colorado law does not compel Smith to create a wedding website for a same-sex couple, or for anyone else. It only insists that once Smith has designed a wedding website, she must allow same-sex couples to purchase that product. In essence, Colorado says she must sell her website template to all customers, regardless of their identity. She need not create a new template or “speak” in support of any marriage. At most, if she makes a wedding website for Henry and Fiona, she must sell the same template to Henry and Frank. As Colorado Solicitor General Eric Olson acknowledged, she could even make a template that (for some reason) condemned same-sex marriage. This speech is permitted. Colorado targets only the conduct of refusing to sell that product to gay people.

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It was this point that the liberal justices tried to make on Monday when the Supreme Court heard arguments in this case. Under their questioning, the radical nature of ADF’s true goal came into focus. The conservative justices responded with a barrage of increasingly bizarre and aggressive questions designed to blur the lens once more. It felt obvious that Justice Samuel Alito and Neil Gorsuch were already looking beyond this case to looming conflicts on the horizon, aiming for a maximalist outcome that’ll empower lower courts to make civil rights laws optional for bigoted businesses.

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The conservative justices’ frustration was palpable. Alito scolded Colorado Solicitor General Eric Olson: “What I get is that you’re making a tiny sliver of an argument. The website can put anything on its website, even something that will blatantly or subtly tell a same-sex couple, look, this is not a service that you want.” After Olson said yes, Alito’s questions only got weirder. He made quips about JDate and Ashley Madison, then unspooled a strange hypothetical that culminated with a joke about a Black child in a KKK costume seeking a picture with Black Santa at the mall. An angry Gorsuch later jumped in to tell Olson that the state’s efforts to mandate compliance with nondiscrimination law amounted to “reeducation” camp.

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Justice Elena Kagan tried to keep arguments on track, with mixed success. Noting that many wedding websites merely provide logistical information to guests, she told ADF’s Kristen Waggoner: “There’s really nothing about the content of this speech” that Smith objects to. “It’s just that the content is being used in a same-sex marriage.” Waggoner told Kagan that “if you believe the wedding to be false,” mere association with the invitation amounts to compelled speech.

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A lot of these questions ran into the fundamental problem with this case: There is no live controversy, and therefore no facts against which the justices could test their legal theories. It would be supremely helpful to know, for instance, how Smith would have responded to a request from a same-sex couple. There is a legal difference between saying no “because you’re gay” (which discriminates on the basis of identity) and saying no “because you’re celebrating a gay wedding” (which, according to ADF, is discrimination on the basis of message). But because the central clash in 303 Creative is purely speculative, no such facts exist. So the justices indulged in increasingly outlandish hypotheticals that drew them further and further from the case at hand, and closer and closer to Alito’s incomprehensible KKK example.

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All of this raises the obvious question: If 303 Creative is not a real case, why did the Supreme Court take it up to begin with? Two probable reasons come to mind. First, the facts are more favorable for conservatives than comparable conflicts like Masterpiece Cakeshop—because nobody felt the sting of Smith’s discrimination (yet). Masterpiece Cakeshop pitted the baker Jack Phillips against his customers, Charlie Craig and Dave Mullins. Both sides were represented: the business owner who sought a license to discriminate and the couple who faced the pain of getting turned away.

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Here, ADF’s lawyers manufactured a case in which there are no victims like Craig and Mullins. That strategy let them transform Smith into an ersatz victim, one who secured gentle, empathetic coverage from the mainstream press. Much like how women were erased from Dobbs, gay people have been erased from 303 Creative. Their absence left space for ADF to paint Smith as an underdog, a fighter—the hero of the story. The Supreme Court can adopt that narrative and depict its decision as a triumph for constitutional rights without the sorrowful objections from the actual victims, since there are none.

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But the thing is, there will be soon enough. And that may be another reason why SCOTUS took up 303 Creative: It provides the opportunity to lay down a seemingly modest legal principle that lower courts can expand to its logical limits and beyond. A decision for Smith will unleash increasingly extreme assaults on civil rights law by Donald Trump’s judges. Trump judges are already champing at the bit to legalize broad swathes of discrimination. 303 Creative may hand them a new weapon against civil rights law, much like SCOTUS’ decision in Bruen let them smash all manner of gun restrictions. It might start with a website designer, but the court’s holding will swiftly spread to bakers, florists, photographers, then venue owners, hotels, caterers, hair stylists, jewelers—any business that can claim its good or services would be used to “express” support for same-sex marriage. This principle might eventually extend to discrimination against all gay people, not just those seeking to get married, under the theory that serving them would require “expressing” support for homosexuality.

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There’s also no reason why this principle would apply exclusively to sexual orientation, and not race, religion, gender, or other protected traits. In their amicus brief, a coalition of states identified several chilling consequences of ADF’s theory:

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A bakery whose owner opposed mixed-race relationships could refuse to bake wedding cakes for interracial couples; a real estate agency whose owner opposed racial integration could refuse to represent Black couples seeking to purchase a home in a predominantly white neighborhood; or a portrait studio whose proprietor opposes interracial adoption could refuse to take pictures of white parents with their Black adopted children.

Americans have spent decades fighting for laws to prevent these odious acts of discrimination. They have elected representatives to the local, state, and federal governments who support civil rights measures. They lobbied their elected officials to pass and enforce nondiscrimination statutes. Through the democratic process, they created a country whose laws reflect a growing commitment to equality. And now a handful of conservative justices are on the brink of undoing that progress because they believe the rights of discriminators matter more than equality for everyone else.

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