Supreme Court Misconstrues Religious Liberty Again In New Discrimination Case

Civil Rights Policy Brief #208 | By: Rodney A. Maggay | July 12, 2023
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Lorie Smith owns a graphic design business in Colorado named 303 Creative, LLC. Ms. Smith decided that she wanted to expand her business into website design, specifically wedding websites for couples. However, Ms. Smith was worried about what effect Colorado’s Anti – Discrimination Act would have on her business and her personal religious beliefs concerning same – sex marriages. Ms. Smith believes that her religious beliefs instruct that only a man and a woman can enter into a marriage because this is “biblical truth.” She feared that under Colorado’s statute that she would be compelled to design a wedding website for a same – sex couple in contravention of her beliefs.

Ms. Smith brought a lawsuit in federal district court seeking an injunction prohibiting Colorado from enforcing the State’s anti – discrimination statute against her and forcing her to create wedding websites for all customers. During the trial, Ms. Smith and the State stipulated to a number of facts. The most significant facts stipulated to were that the wedding website designs were created by Ms. Smith and were “expressive in nature” and were “original, customized” creations that conveyed her beliefs about marriage. The federal district court ruled against Ms. Smith and denied her request for an injunction. The case was appealed to the United States Court of Appeals for the Tenth Circuit. The appeals court ruled that while Ms. Smith’s creation of wedding websites constituted “pure speech” protected by the First Amendment she was not entitled to an injunction prohibiting Colorado from enforcing its anti – discrimination statute against her. The case was then appealed to the United States Supreme Court.

On June 30, 2023 the Court decided in a 6 – 3 decision that under the Free Speech Clause of the First Amendment that Ms. Smith could properly refuse to create a wedding website for a paying same sex couple. LEARN MORE


This case is very similar to a Supreme Court case from 2018 that was also from Colorado and also focused on whether a business could decline to provide a business service to a same sex couple. Masterpiece Cakeshop v. Colorado Civil Rights Commission was a narrow ruling against the Colorado Civil Rights Commission finding that the Commission was not neutral to religion in that particular case. But that case also avoided issuing a sweeping judgment addressing the contentious issue as to whether religious beliefs can be used to discriminate against a class of people such as LGBQT persons. There was hope that the 303 Creative, LLC case might address that but the Court again refused to address the religious beliefs to discriminate conflict directly and instead decided this case differently. The Court ruled for Ms. Lorie Smith on Free Speech grounds.

Justice Neil Gorsuch’s opinion tracks the “strict scrutiny” analysis employed by the Tenth Circuit Court of Appeals but comes to a different conclusion. Under the two – step strict scrutiny analysis, speech can be prohibited if the government has a “compelling governmental interest” and “no less restrictive alternative exists to secure that interest.” When he analyzes the compelling government interest Justice Gorsuch recites the long history of cases that showed that the government had no compelling interest in forcing persons to espouse a particular message or viewpoint. Children could not be forced to say the Pledge of Allegiance (West Virginia Board of Education v. Barnette), a veterans group could not be forced to include LGBQT members in their parade (Hurley v. Irish – American Gay, Lesbian and Bisexual Group of Boston, Inc.) and the Boy Scouts could exclude a scoutmaster because he was gay (Boy Scouts of America v. Dale). At the heart of all these cases is that the government may not compel a person or association from speaking a specified or preferred government message. According to Justice Gorsuch then, the “compelling government interest” prong of the strict scrutiny analysis fails because there is no government interest in forcing Ms. Smith to create wedding websites for same sex couples because of the expressive nature of her “speech” in creating these websites.

However, Justice Sotomayor’s dissenting opinion contains an interesting historical footnote that should not be overlooked. In Section C – 1 of her dissent, she recounts the debate over the Civil Rights Act of 1964 and the legal history of antidiscrimination statutes similar to the Colorado act at issue in this case. What is noteworthy is that business owners who were opposed to the Civil Rights Act of 1964 claimed that by being forced to serve a certain class of people would force them to act against their religious convictions. This is the same argument being made today by those who want to deny service to LGBQT persons. Congress rejected those arguments and proceeded to pass the landmark civil rights law. The history then shows that these opponents tried to take their concerns to court where they consistently lost. In Katzenbach v. McClung, the Court rejected a business owner’s argument that his personal convictions prohibited him from serving Black people at his restaurant. In Newman v. Piggie Park Enterprises, Inc. the Court rejected the argument that a business owner forced to serve Blacks would violate his religious liberty. And lastly, in Runyon v. McCrary the Court rejected a school’s First Amendment Free Speech argument in support of their policy of excluding Black children from enrolling. The Court said that Free Speech under the First Amendment did not permit a school to discriminate because the school was still free to teach its preferred “ideas or dogma.” What the debate prior to passage of the Civil Rights Act of 1964 and these cases illustrate, and what Gorsuch’s majority opinion misses, is that the arguments and rationales supporting discrimination based on religious beliefs and convictions had been previously rejected by Congress and the Supreme Court. This Court is simply ignoring these cases in order to get their preferred policy result in allowing religious beliefs to be used as justification to discriminate against a class of people. Back then, the goal was to exclude Blacks but now the same rationales are being brought up again but now to exclude LGBQT persons.

While Justice Gorsuch’s majority opinion does a proper free speech strict scrutiny analysis of the case, even he admitted that he came to a different legal conclusion than what the Tenth Circuit Court of Appeals came to when it did its own strict scrutiny analysis. Legal rules can often be twisted and manipulated to get a preferred policy outcome. But his opinion fails to address the concerns raised by Justice Sotomayor in her dissent that could have changed the outcome in the case. Gorsuch’s penchant of picking and choosing convenient facts and ignoring significant cases and precedents makes his reasoning less credible in the ongoing religious liberty – discrimination debate. LEARN MORE, LEARN MORE

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This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact

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