Supreme Court leaves key questions unanswered in the way it sided with Colorado web designer

Majority and minority opinions talked past each other, never really answering question of what is protected by First Amendment

Photo by Alvin Mahmudov; licensed by Unsplash.

The Supreme Court’s siding with a Colorado business that wanted to refuse its wedding website design services for same-sex nuptials came as no surprise. During oral arguments earlier this year, the court’s conservative majority was obviously sympathetic to the free-speech claims of the web designer.

Indeed, the case, 303 Creative v. Elenis, was decided 6-3 along ideological lines, with the conservative majority saying that the web designer shouldn’t be required to create same-sex wedding sites against her will and the liberal minority saying that once 303 Creative advertised its services to the general public under Colorado’s law, it was required to provide those services without discrimination.

What was surprising was how little guidance — basically none — the court’s majority opinion gave to lower courts in handling similar cases that undoubtedly will be coming.

Although Smith had raised freedom-of-religion issues in lower courts, the Supreme Court agreed to take her case on free-speech grounds only; her religion wasn’t mentioned in the court’s written opinions. Even so, the case was closely watched by parties interested in church-state issues.

While many of us observers expected the court to rule in favor of Smith, the question we kept on asking is how broad will the decision be: If the freedom to design a website is protected as free speech in this case, how about photography, for example? Could a photographer refuse to take pictures at same-sex weddings? Could a stationery store refuse to print invitations for same-sex weddings? Could a bake refuse to bake a cake for a wedding if it said “Congratulations” on it.

In the end, none of those hypotheticals mattered.

¹

“Doubtless, determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions,” Justice Neil Gorsuch acknowledged in the majority opinion. But there was no need to address those thorny issues, he wrote, because the parties had stipulated early in the case that Smith’s company was engaged in expressive conduct.

In the end, the majority’s reasoning was simple: The parties have agreed that Smith’s decisions on what websites she’ll publish are expressive conduct, and expressive conduct is protected by the First Amendment.

And the dissent, penned by Justice Sonia Sotomayor, was just as simple in its reasoning: By advertising that her services are available to the public in a state with a law such as Colorado’s, she legally makes those services available to the public without discrimination.

The minority opinion also noted that Smith is not prohibited from stating her views about marriage; if she wants to produce only websites featuring Bible quotations, she can do that, as long as those websites are available to all.

Majority, minority opinions raise different issues

Essentially, the majority and minority opinions talked past each other. For the majority, this was a First Amendment case. For the minority, it was a discrimination case involving business conduct, not protected speech.

“It is difficult to read the dissent and conclude we are looking at the same case,” a seemingly exasperated Gorsuch wrote.

Sotomayor came across equally frustrated: “The Court reaches the wrong answer in this case because it asks the wrong questions,” she wrote.

And because the court was so divided, it never resolved the case on common ground that might have sought a balance between free speech and discrimination — or even to determine what business actions might be seen as “speech” for legal purposes.

As a result, the legal landscape over business refusal to be involved with same-sex weddings isn’t much clearer than it was two days ago. A state might not to be willing to stipulate, for example, that wedding photography falls under the umbrella of free speech, and then we’ll face this issue all over again.

And it’s not just LGBT concerns that are at issue. The same laws that protect LGBT persons also protect people based on race, religion and other factors. In a state that prohibits discrimination based on disability, could a portrait photographer refuse the business of someone with a visible disability on grounds that such a photo could be seen as expressing a viewpoint about how disabilities should be treated? There’s nothing in today’s ruling that comes close to giving an answer.

By relying on the stipulation between Smith and Colorado, the high court has been able to dodge making a decision on one of the most contentious issues facing our legal system. As a result, we can see the issue about what constitutes expressive conduct raised again and again.

1. Also note that none of this regarding same-sex marriage matters in states that don’t have broad public accommodations laws. About half the states that have public accommodations laws recognize a protected class based on sexual orientation. In other states, there likely would have been no legal questions raised about the right of a company such as Smith’s to refuse services to gay couples.