The Supreme Court has sided with a Christian graphic designer who refuses to create wedding websites for gay or lesbian couples. The result comes as little surprise. Writing for a six-justice conservative majority, Neil Gorsuch said that Colorado’s anti-discrimination law violates the designer’s right to free speech because the state “seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.”
The decision in 303 Creative v. Elenis is the latest in a long-running battle between religious business owners and states seeking to protect the L.G.B.T.Q. community. In 2018, the court faced a similar question when a Colorado baker violated the same anti-discrimination law by refusing to bake a wedding cake for a gay couple. The court ruled in favor of the baker on narrow grounds, ducking the broader free speech question.
Now it has addressed that question in a ruling that is deeply significant. More than 20 states, including New York and California, have anti-discrimination laws like Colorado’s. By creating a free speech carve-out from these laws, the court’s ruling threatens to obliterate a vital tool in efforts to protect the L.G.B.T.Q. community at a time when it faces hatred and violence.
In both this case and the case involving the Colorado baker, the plaintiffs were represented by lawyers from the Alliance Defending Freedom, which describes itself as “protecting religious freedom, free speech, the sanctity of life, parental rights and God’s design for marriage and family.”
The 303 Creative ruling is legally dubious. Lorie Smith, the graphic designer in the case, had not been compelled to speak by Colorado’s anti-discrimination law; it was her own choice to hold her business open to the public that triggered the law’s requirement that she treat gay and straight customers equally. Yet the court forged ahead in yet another decision that projects an uncompromising certainty.
However, the court’s ruling is not untouchable. Progressive states retain an important workaround: They can amend their laws to continue protecting gay and lesbian customers from discrimination without compelling expression by religious business owners. Here’s how.
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