SCOTUS Sides With Freedom of Religion in Battle Between First and Fourteenth Amendments

Why did the Pilgrims leave England? Think back to your elementary school days. The answer you were taught might have been that they moved to America to escape religious persecution.

You may already know that the First Amendment of the U.S. Constitution reflected our nation's history in pursuing religious freedom. But you probably also know that this same amendment protects many other things besides the freedom to practice whatever religion you want. Even if you can't name any of the other things protected by the First Amendment, you probably know that it famously protects your freedom of speech. Maybe you've even kept that nugget in your back pocket to defend yourself when your grade school teacher reprimanded you for saying something snarky in class.

Many students in the United States have learned the same thing: (1) that the U.S. exists because the Pilgrims wanted to practice their religion freely; and (2) that the Founding Fathers, in deference to these Pilgrims, declared that this religious freedom would be the bedrock of the New World by cementing it as the very first freedom guaranteed by the country. If you knew this, you might have gotten an A+ in social studies. Time for recess.

The First Amendment Wins (This Time)

Back to the present. With both of these ideas so ingrained in Americans' minds, is there any wonder the battle to balance the freedoms of speech and religion with other constitutional rights continues? What happens when these rights conflict with another important constitutional right: the freedom from discrimination, i.e., equal protection under the Fourteenth Amendment? In U.S. Supreme Court cases, we often find some version of the same question: Whose rights are more important?

Recently, the Supreme Court provided an important (though not unexpected) answer to that question in the opinion for 303 Creative LLC v. Elenis. Writing for the majority, Justice Neil Gorsuch stated in his opinion that Colorado could not force a company that made wedding websites to create a website for couples of the same sex. The rationale was that being forced to do this violated the website creator's First Amendment rights of freedom of speech and expression under the Constitution. In writing for the dissent, Justice Sonia Sotomayor argued that the majority's decision was another in a series of recent conservative rulings designed to strip away equal access. Only this time, the Court essentially greenlit the constitutional right for businesses to refuse to serve protected class members.

Colorado's Anti-Discrimination Laws

Like other states, Colorado has enacted laws and regulations that ensure its residents are not discriminated against, regardless of their race, creed, disability, sexual orientation, and other protected traits. The Colorado Anti-Discrimination Act (CADA) forbids all "public accommodations" (which more or less includes all public-facing businesses) from denying people with certain protected traits the same access to their goods and services.

Coloradan Lorie Smith owns 303 Creative, which offers website design services and social media management. When Smith decided that she wanted to begin designing wedding websites, she became concerned that the state would require her to create websites that went against her deeply held religious belief that marriage should only be between a man and a woman.

Why did she think that might happen? You might remember a similar lawsuit out of Colorado five years ago, where a gay couple sued a baker who refused to design their wedding cake. The facts were similar in that case, Masterpiece Cakeshop v. Colorado Civil Rights Commision. And the case raised many of the same questions that Lorie's lawsuit would raise. But in Masterpiece Cakeshop, SCOTUS didn't rule on these questions because other issues let them avoid doing so. (Remember, the Supreme Court likes to avoid answering sticky constitutional questions if answering a simpler question would make those questions moot.)

Website Designer Preemptively Sues

To cover herself before she launched her new venture, Smith filed a suit in federal district court to ask the court to stop Colorado from forcing her to create websites for same-sex couples. She argued that because the websites she created were part of the "speech" protected by the First Amendment, she could not be made to produce "speech" that she fundamentally disagreed with (i.e., that she could not be forced to make a website with a message that she disagreed with). She argued that her right to religious freedom was more important than the rights of same-sex couples to be treated equally.

Smith's and the state's attorneys stipulated various facts to facilitate a quicker resolution. They agreed that the websites designed by Smith, and the messages she created, were expressive, original, customized creations attributed to her. And that they could be seen as an expression of her beliefs.

After the district court ruled in favor of the state because it found that Smith didn't have standing to sue, Smith appealed to the Tenth Circuit. But the circuit court also agreed with the State for different reasons. In its opinion, the Tenth Circuit found that Smith did have standing to bring the lawsuit. They also agreed with her argument that her websites constituted "pure speech" rather than "symbolic speech." "Pure speech" is expression conveyed through spoken or written words and is afforded the highest protection under the First Amendment. Despite this, the circuit court still found that the state had a compelling reason to ensure equal access by enforcing CADA.

The Supreme Court reversed. They ruled that the owner of a business such as Smith cannot be forced, even under a public accommodation law, to create a work of art which goes against their values. Justice Gorsuch's majority opinion seems to assume that, in some sense, Smith was treating the homosexual customers the same as her heterosexual customers insofar as she "would not create or convey for any client" a website with a message promoting the homosexuality that went against her religion. 

Because, again, SCOTUS likes to dodge answering questions that they don't need to, they left open the question of what qualifies as expressive activity protected by the First Amendment. But apparently, a wedding website qualifies.

How Can a Website Be Speech?

When you think about freedom of speech, you probably think of the newspaper articles criticizing the government or the protester on the Capitol steps with a megaphone calling out an unpopular law. Many people see this as the type of protected speech that the framers of the Constitution had in mind. But the First Amendment goes much broader than protecting this type of speech.

How can a website be protected speech? While recognizing the parties' stipulations in the lower courts, the Court made that question moot. It explained that all speech qualified for First Amendment protection regardless of its medium. So, as it could be considered an expression, Smith's wedding website would be speech protected under the First Amendment.

So, what could be expressed by the designer of a wedding website other than "so and so are in love, here's the day, bring cash"? As the Court explained, Smith's speech, and her freedom to choose how to express it, was under attack by CADA. By forcing Smith to create wedding websites that went against her religious beliefs, CADA demanded Smith express an opinion in favor of same-sex marriages.

Why Religion Is Usually the Winner

As we mentioned earlier, this is not the first case out of Colorado to deal with this issue. The Masterpiece Cakeshop case followed a similar trajectory. In that case, a Colorado cake shop refused to design a cake for a same-sex couple. While the cake shop owner eventually won in a Supreme Court decision, that was more because of the unlawful actions of the state rather than the constitutionality of the owner's speech.

This is also not the first time that SCOTUS has favored religious freedoms over government statutes. In West Virginia Board of Education v. Barnette, the Court investigated a 1942 state board of education demand that all school children salute the flag and recite the Pledge of Allegiance, under possible penalty of expulsion and prosecution and jail for their parents. When practicing Jehovah's Witness, students were expelled for refusing to stand and pledge (as it went directly against their religious beliefs), and they sued the state. SCOTUS sided with the students in an opinion by Justice Robert Jackson. Jackson would later become a prosecutor of Nazis during the Nuremberg Trials. This was probably no coincidence; Jackson wanted the world to know that the United States differed regarding religious freedoms.

In its long history and various cases, SCOTUS has often been partial to religious rights over the rights of protected classes. In Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, a lower court had ordered the organizers of a parade (who were a group of unincorporated private citizens) to allow a group of LGB people to march in a St. Patrick's Day parade, under a Massachusetts public accommodations statute. SCOTUS reversed the lower court's order. It found that the parade was constitutionally-protected speech. The lower court had violated the parade organizers' constitutional rights by requiring them to include the LGB group.

Similarly, in Boy Scouts of America v. Dale, SCOTUS found that the Boy Scouts were an "expressive association" that deserved First Amendment protection. The court found that even under a New Jersey public accommodations law, the Scouts could not be forced to reinstate a recently ousted gay assistant scoutmaster.

Which Rights Are More Important?

Unfortunately, this question probably won't be answered anytime soon. If you change even one of the facts from 303 Creative, it becomes a new case. Say that instead of a wedding website designer, the plaintiff was a wedding photographer or band. Does that still constitute speech? If so, would the speech still be protected? And if it was protected, could that justification still be used to refuse to serve members of a protected class — as Justice Sotomayor fears?

Whether this decision is a victory for religious freedom or undoes thousands of years of progress for the LGBTQ+ community is a personal question. And it might not have a simple answer. Perhaps the fact that this debate has been going for much of our country's history is just proof that "the last great experiment" known as democracy is, as George Washington said, "a government of accommodation as well as a government of laws."

Related Resources

• FindLaw's LGBTQ+ Legal Resource Hub
• When Can You Sue a Business for Discrimination Based on Sexual Orientation or Gender Identity?​ (FindLaw's Learn About the Law)​
• Supreme Court Rules LGBTQ Workers Protected From Discrimination (FindLaw's Law and Daily Life blog)​