And then there is religion and the case of the web designer who sought the right to refuse to design websites for same-sex couples celebrating a marriage. I was baffled when the court agreed to hear the designer’s appeal in February of last year, and not only because the designer, Lorie Smith, had not yet designed a wedding website for a paying customer and hadn’t turned anyone away — indications that the case wasn’t ripe for review.
Her lawyers at Alliance Defending Freedom, a hard-right Christian litigating group, asked the court to decide whether Colorado’s law prohibiting businesses from discriminating against L.G.B.T.Q. people violated either Ms. Smith’s right to freedom of religion or to free speech. The court agreed to hear only the speech question. I didn’t see how the two questions could be disentangled, given that Ms. Smith sought the right to post a statement on her web page explaining that it was for religious reasons that she was unable to create a website for a same-sex wedding. In other words, it was religion that inextricably fueled her free-speech claim.
Justice Gorsuch’s majority opinion, in fact, took pains to nest the religious essence of the case so deeply in the discussion of free speech that even a well-informed reader might not realize what the decision accomplished: The court has created a religious opt-out from compliance with laws that govern the commercial marketplace. He found a First Amendment violation in the fact that if Ms. Smith went into the wedding website design business, Colorado’s anti-discrimination law would require her to take all customers. His opinion cites many First Amendment precedents, including the right not to salute the flag, the right of private parade organizers not to include a gay organization among the marchers and the right of the Boy Scouts not to retain a gay scoutmaster.
But none of those precedents are relevant, because none involved discrimination by a commercial entity. It is only on the first page of Justice Sonia Sotomayor’s dissenting opinion, joined by Justices Elena Kagan and Ketanji Brown Jackson, that a reader will comprehend clearly what just happened: “Today, the court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”
A full understanding of this case, 303 Creative L.L.C. v. Elenis, requires context. It is now eight years since the court, in Obergefell v. Hodges, recognized a constitutional right to same-sex marriage. Of the six members in the majority in 303 Creative, three were on the court for Obergefell, and all three — Chief Justice Roberts and Justices Thomas and Samuel Alito — were dissenters. Justice Alito’s dissenting opinion, which Justice Thomas joined, was bitter. The decision would be “used to vilify Americans who are unwilling to assent to the new orthodoxy,” he warned. Since then, those two justices have been searching for an Obergefell victim whose plight would vindicate their expressed concern. It wasn’t easy, but finally, despite the appeal’s obvious procedural flaws, in 303 Creative they found one.
