Culture Wars at the U.S. Supreme Court: When Gay Rights Clash with Religious Freedom

The U.S. Supreme Court has been presented recently with multiple appeals from religious institutions that object to laws prohibiting discrimination on the basis of sexual orientation. A baker who objects to making a cake for a same-sex wedding filed a petition for Supreme Court review at the beginning of September 2022 in Klein v. Oregon Bureau of Labor & Industries . In mid-September, the Supreme Court denied an emergency appeal from a religious university claiming the state violated the Constitution’s Free Exercise Clause by forcing it to officially recognize a "Pride Alliance" student group in Yeshiva University v. YU Pride Alliance . Briefs were also filed this summer in 303 Creative LLC v. Elenis , a case in which the Supreme Court agreed to consider whether a state would violate the Free Speech Clause by applying its non-discrimination laws to a website designer who does not want to create websites for same-sex weddings.

The intersection between First Amendment protections for speech and religion and the state’s interest in prohibiting discrimination is not a new issue for the highest court in the land. However, the Court’s rulings in earlier cases left open a number of larger doctrinal questions that are now presented by this new set of appeals.

This article offers background on and briefly reviews the issues presented in 303 Creative.

The Supreme Court agreed to hear oral arguments on December 5, 2022, in 303 Creative, a case in which a website designer brought a pre-enforcement challenge to Colorado’s non-discrimination law. The designer wants to offer wedding-related services only for opposite-sex marriages but is concerned that she would violate Colorado law prohibiting sexual-orientation discrimination in public accommodations. She challenged two separate clauses of the law: one that prohibits refusing accommodations on a discriminatory basis and a second that prohibits publishing communications indicating that a business will refuse accommodations on a discriminatory basis. The U.S. Supreme Court granted certiorari to consider "whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause."

In the decision below, a federal appeals court agreed with the designer that the "creation of wedding websites is pure speech" and, consequently, applying the accommodations provision of the law to her work would implicate the Free Speech Clause by compelling her to create speech celebrating same-sex marriages. Accordingly, the court applied strict scrutiny to this potential application of the law. Although a court applying that level of scrutiny usually invalidates the law, the court here concluded that the government had met its extremely high burden. The court held that the law was narrowly tailored to the state’s compelling interest in ensuring equal access to publicly available services. With respect to the communications provision of the law, the court ruled that it did not violate the designer’s free speech rights because the state "may prohibit speech that promotes unlawful activity," including the denial of services it had just concluded was unlawful. One judge dissented .

On appeal to the U.S. Supreme Court, the designer claims that the lower court erred in concluding that the state could satisfy strict scrutiny, arguing instead that "Colorado lacks a compelling government interest to coerce or silence" her speech and "has numerous, less burdensome alternatives to achieve any legitimate interests it might articulate." She continues to assert that when applied to her business, the law would compel speech rather than regulate conduct because her websites would all convey messages celebrating the weddings. She claims that no state interest could justify "compelling or restricting speech contrary to conscience." Finally, she argues that the state has less speech-restrictive alternatives available to achieve its goals: granting limited exemptions to certain service providers. The Kleins have filed an amicus brief supporting the designer.

Colorado contends that, contrary to the lower court’s opinion, its non-discrimination law should not be subject to strict scrutiny. It says its law targets non-expressive activity by regulating the "act of selling something," which "is not itself expressive conduct." In the state’s view , it is not dictating the content of the designer’s websites; she could choose to sell only websites with "biblical quotes describing marriage as the union of one man and one woman," but once she chooses to sell those websites, she cannot refuse to sell them to customers on the basis of protected characteristics. Accordingly, the state argues that at most, its law should be subject only to intermediate scrutiny. In the alternative, the state claims that it can satisfy any level of scrutiny, given its compelling interest in preventing discriminatory sales that cannot be achieved through less restrictive means. The United States has filed an amicus brief in support of Colorado and asked to share time at oral argument. The Solicitor General’s brief echoes the state’s claim that the law triggers only intermediate scrutiny but also emphasizes the broad, pre-enforcement nature of the designer’s challenge seeking a categorical exemption from the law.

303 Creative could clarify when a law that generally targets conduct is subject to strict scrutiny based on its application to speech. The Court could also clarify when the Free Speech Clause protects a business creating expression on behalf of a third-party — that is, what types of business activities qualify as inherently expressive. This conflict between speaker autonomy and non-discrimination provisions has also come up in the context of challenges to state laws regulating content moderation . Accordingly, an opinion in 303 Creative could have jurisprudential implications for free speech claims outside the context of religious objectors.