A probable victory for freedom of expression

Last week, the Supreme Court heard argument 303 Creative v. Elenis, the latest marriage salesman case – this time about a web designer who doesn’t want to design sites for same-sex marriages. Marriage vendor cases typically present a conflict between freedom of expression, including religiously motivated speech, and equality in the marketplace for goods and services. Based on last week’s argument, it looks like the Court is ready to rule in favor of free speech this time, as I explain in a post today at First things:

Solve [the designer’s] The claim requires the Court to answer a basic conceptual question under the Court’s precedents: as it applies to Smith’s web design business, does the CADA regulate speech Where conduct? In the first case, the CADA would have to pass a test known as “strict control”. Colorado would have to show that prosecuting Smith was “necessary” to further an “overwhelming” state interest. In contrast, if the law regulates conduct and only incidentally affects speech, Colorado would have to meet a more lenient test known as OhBrien Standard. Colorado would only have to show that CADA was “furthering” an “important” or “substantial” state interest unrelated to speech suppression.

During argument last week, the Colorado attorney argued that CADA is primarily directed at driving. If Colorado was prosecuting Smith, he explained, it would be because Smith discriminated against clients based on their sexual orientation, not because she expressed an opinion on same-sex marriage. Smith couldn’t be held to expressly praise same-sex marriage, but she would have to design websites for all comers. Appearing on behalf of the Biden administration as an amicus curiae, Deputy Solicitor General Brian Fletcher agreed. Flatly refusing to design websites for same-sex marriages, he told the judges, would be “a form of status discrimination as such under public housing laws.”

This argument seemed to convince progressives like Justice Sonia Sotomayor, but not the Court’s conservatives. For example, Judge Neil Gorsuch pointed out that Smith repeatedly said she would “serve everyone,” straight, gay or transgender, and would refuse to design websites for same-sex marriages no matter who asked for them. She objected to expressing a message that she disagreed with, not serving customers of different sexual identities. When it comes to wedding web design, Gorsuch pointed out, “the question” for Smith was not “who,” but “what.”

Justice Gorsuch did not mention it, but a recent UK Supreme Court case, Ashers Bakery, supports his argument. In this case, decided four years ago, a bakery in Northern Ireland refused to bake a cake with a pro-gay marriage message. The UK court ruled that the bakery did not breach UK anti-discrimination law because it made a distinction based on the message conveyed, not the identity of the customer – the ‘what’, not the ‘ who,” in Gorsuch’s words. Ashers Bakery is not quite similar to 303 Creative. In the case of the United Kingdom, the bakery refused to make a cake with an express pro-gay marriage message, while the creator of 303 Creative does not wish to design a website for a gay wedding, even generic without an express message. And, anyway, this Court probably won’t feel comfortable relying on a foreign decision in a First Amendment case. But the cases are terribly close, and the reasoning in Ashers Bakery can ultimately control the outcome here as well.

If the Court decides that the CADA regulates speech and therefore must pass scrutiny, it seems that the Court will not uphold the law. I explain why in my message. The Court’s decision is expected by the summer.

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