Christian wedding professionals celebrate bigger win

In a resounding win for free speech and religious liberty, the Supreme Court on Friday protected a Christian web designer in Colorado from a state anti-discrimination law that would have forced her to create websites celebrating same-sex marriages.

The ruling came in a case that pitted a broadened public accommodation law against the First Amendment rights of Lorie Smith, the owner of 303 Creative. The measure barred businesses from discriminating against customers because of sexual orientation. Smith wanted to expand her services to include design for wedding websites, but she was concerned she would run afoul of the Colorado law if she declined to create sites for same-sex couples. She contended she had no problem designing websites for gay customers as long as they did not convey support for same-sex marriage—something that violates her Biblical beliefs.

Like many similar state and local measures, the Colorado law is an outgrowth of civil rights–era laws that were enacted to prevent businesses like hotels and restaurants from denying services on the basis of race or ethnicity. In recent years, officials have increasingly applied the laws to cover a broader range of businesses and to protect from discrimination based on sexual orientation or gender identity.

Writing for a 6-3 majority, Justice Neil Gorsuch recognized the important role public accommodations laws played in eliminating discrimination but pointed to limits imposed by the Constitution.

“Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected trait,” Gorsuch wrote. “Taken seriously that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty.”

That would include forcing “a male website designer married to another man to design websites for an organization that advocates against same-sex marriage,” he offered.

In a dissenting opinion joined by Justices Elena Kagan and Ketanji Brown Jackson, Justice Sonia Sotomayor attempted to recast the case as one about denial of services because of status, not message. She called the state’s law an “incidental”—meaning inconsequential—burden on speech. Sotomayor also described website building as “conduct” and not speech subject to First Amendment protection.

Gorsuch was having none of it. “It is difficult to read the dissent and conclude we are looking at the same case,” he wrote in a point by point refutation of Sotomayor’s “reimagination” of the facts. “The dissent abandons what this Court’s cases have recognized time and time again: A commitment to speech for only some messages and some persons is no commitment at all.”

On hearing the news, Smith was jubilant.

“This is a victory not just for me but for all Americans across our great country—for those who share my beliefs and for those who hold different beliefs,” Smith said at a news conference shortly after the ruling. “Whether you’re an LGBT graphic designer, a Jewish calligrapher, an atheist speechwriter, or a pro-life photographer, the government shouldn’t force any of us to say something we don’t believe.”

Smith’s voice cracked and she became emotional when speaking about the death threats and harassment she experienced during her seven-year legal journey and the allegations that the case was about taking freedoms away from members of the LGBT community. “For me, it’s never about the who, it’s about the what,” Smith insisted, noting that she had always served LGBT clients with her web design business.

Inspired by her mother’s example in starting a wedding boutique, the Denver-area mom started her own business in 2012. Fellow Colorado business owner Jack Phillips’ run-in with a hostile Colorado Civil Rights Commission in 2013 caused her to question whether she might also be forced to choose between violating her Biblical convictions or closing a business barely off the ground. Phillips, a baker, ultimately secured a narrow win from the Supreme Court in 2018. A majority of the court ruled that Colorado officials had demonstrated overt and unconstitutional hostility toward the baker’s Christian faith.

In 2016, Smith filed a preemptive challenge to the same law that snagged Phillips. After a District Court ruled against her in 2021, a divided panel of the 10th U.S. Circuit Court of Appeals affirmed the ruling. That sent her to the Supreme Court, which heard oral arguments in the closely watched case in December 2022. Court observers then seemed to agree that a win by Smith was almost certain, but the breadth of the potential ruling was unclear.

Today’s ruling settled that speculation. Its scope may translate to victory for another handful of small business owners litigating similar claims. That includes Phillips, who more than a decade later is still locked in a contest with an attorney who claims the baker wrongly declined to design a cake to celebrate a gender transition.

Phillips’ case is awaiting oral arguments before the Colorado Supreme Court after a January ruling by the Colorado Court of Appeals that rejected his argument that baking a custom-designed pink cake with blue icing constituted protected speech under the First Amendment. Autumn Scardina, a man who identifies as a woman, told Phillips’ wife, Debra, about the message of the cake.

In upholding the trial court’s ruling for Scardina, the court characterized the case as one simply about status, not message, as the design of the cake bore no inherent message or meaning. That may give the Colorado high court room to maneuver around today’s ruling, in which the parties stipulated that Smith’s web design was expressive content covered by the First Amendment.

The ruling could have a more direct effect on other cases. In Kentucky, wedding photographer Chelsey Nelson won a similar battle with the city of Louisville over its anti-discrimination ordinance in August 2022. The city appealed to the 6th U.S. Circuit Court of Appeals. Oral arguments are scheduled for July 28.

Similarly, New York wedding photographer and blogger Emilee Carpenter is asking the 2nd U.S. Circuit Court of Appeals to reverse a ruling that upheld a New York state law that threatened her with fines and penalties for not photographing same-sex weddings. Oral arguments were held in September 2022, but shortly thereafter the court placed a hold on the case until after the ruling in 303 Creative.

Virginia wedding photographer Robert Updegrove is also awaiting a ruling from the 4th U.S. Circuit Court of Appeals after a March 2021 District Court ruling dismissing his challenge to a state anti-discrimination law. His case is also on hold, awaiting today’s ruling.

And in Oregon, the state Supreme Court will now reconsider the case of Sweet Cakes by Melissa bakers Aaron and Melissa Klein. Shortly after today’s ruling in 303 Creative, the U.S. Supreme Court set aside the Oregon court’s ruling last year that threatened to shutter the Kleins’ business. The couples’ battle with the state over its anti-discrimination law dates back to 2013, when they declined to create a custom wedding cake for the wedding of two lesbians.

“Disagreement isn’t discrimination, and the government can’t mislabel speech as discrimination to censor it,” said Kristen Waggoner, president and general counsel for Alliance Defending Freedom. “The ruling makes clear that nondiscrimination laws remain firmly in place, and that the government has never needed to compel speech to ensure access to goods and services.”