Spoiler alert: This is unlikely to go well for LGBTQ people.
In the past few years, the Supreme Court danced around the question of whether religious conservatives have a constitutional right to violate anti-discrimination laws — and specifically laws prohibiting discrimination against LGBTQ people.
Now, it appears ready to come out and say that at least some businesses have a constitutional right to discriminate.
On Tuesday, the Court announced that it will hear 303 Creative v. Elenis, a case that is likely to give at least some businesses a right to openly refuse services to LGBTQ customers.
This question first arose in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), where the Supreme Court ruled in favor of a baker who refused to bake a wedding cake for a same-sex couple. Yet, while Masterpiece Cakeshop was a victory for the religious right, it turned out to be a very narrow one. The Court held that states could still enforce bans on anti-LGBTQ discrimination, but that state officials had to be careful not to disparage the religious beliefs of people who use those beliefs to justify discrimination.
Then, in Fulton v. City of Philadelphia (2021), the Court handed down a similar nothingburger opinion, ruling in favor of a government contractor that refused to work with same-sex couples seeking to foster a child — but on exceedingly narrow grounds.
303 Creative presents many of the same questions at issue in Masterpiece Cakeshop and Fulton. It involves a web design company owned by a woman named Lorie Smith, who refuses to create websites celebrating same-sex weddings. She claims that “doing that would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage.”
Thus far, Smith has not sold her services to anyone who wants a wedding-related website, because she fears violating Colorado’s law prohibiting discrimination against LGBTQ people. She wants the Supreme Court to give her license to design wedding websites for opposite-sex couples — and only for opposite-sex couples.
In the likely event that Smith prevails before this very conservative Court, 303 Creative could offer another narrow victory to religious conservatives. Or it could wind up dismantling what remains of a seminal 1990 precedent holding that religious individuals typically need to follow the same laws as everyone else. At the very least, 303 Creative could give people in creative professions a sweeping new right to discriminate.
The Supreme Court appears eager to give religious conservatives sweeping exemptions from the law
In Employment Division v. Smith (1990), the Supreme Court held that people who object to a law on religious grounds must still obey that law, unless it imposes obligations on religious people that don’t apply to secular individuals. In Smith’s words, religious objectors must still follow a “valid and neutral law of general applicability.” (A federal statute applies a stricter rule to federal laws that burden religion, but this rule does not apply to state laws that burden people of faith.)
In other words, a law that prohibits all businesses, regardless of whether their owners are secular or religious, from discriminating against LGBTQ customers complies with Smith. But a law that imposes obligations on religious institutions, but not secular businesses, would likely be found unconstitutional.
Shortly after Justice Amy Coney Barrett’s confirmation gave Republicans a supermajority on the Supreme Court, however, the Court’s new majority started dismantling Smith by redefining what constitutes a “neutral law of general applicability.” As a 5-4 Court held in Tandon v. Newsom (2021), “government regulations are not neutral and generally applicable . . . whenever they treat any comparable secular activity more favorably than religious exercise.”
The Court, moreover, defined the term “any comparable secular activity” quite expansively. Suppose that, at the height of the Covid-19 pandemic, a state placed restrictions on church attendance that it didn’t apply to grocery stores. Under Tandon, the restrictions on churches would be illegal, even though people are much more likely to catch Covid at a highly attended religious service than at a supermarket.
Among other things, people don’t typically gather together for hours in a grocery store, or socialize in a supermarket, or sing hymns while they are buying food. But the Court did not care about these distinctions in Tandon, deeming attending religious services and buying groceries to be “comparable” activities.
In any event, the plaintiffs in 303 Creative argue that Colorado’s anti-discrimination law is not neutral or generally applicable because it only applies to certain forms of discrimination. Among other things, the law permits gender discrimination when such discrimination “has a bona fide relationship” to the services provided by that business. So a women-only gym is allowed to remain a women-only gym.
To be clear, the Court’s previous cases express no view on whether states should permit businesses to engage in gender discrimination. They merely leave the question of whether to permit businesses like single-sex gyms up to state lawmakers. States have historically been allowed to decide which forms of discrimination they wish to prohibit and which ones they wish to permit, and there is a great deal of variation among state anti-discrimination laws.
According to the Human Rights Campaign, for example, about a dozen states have no laws whatsoever prohibiting LGBTQ discrimination, while other states have expansive protections.
In Tandon and similar cases, however, the Court signaled that any law that imposes restrictions on religious objectors is suspect if it provides any exemptions for secular activity. So it’s unlikely that this Court will allow Colorado to apply its anti-discrimination law to religious objectors, because the law does contain an exception for secular businesses such as single-sex gyms.
The Court is likely to tell us just how much it values preventing anti-LGBTQ discrimination
303 Creative also asks just how important preventing anti-LGBTQ discrimination is, in the eyes of the justices.
The lower appeals court that heard 303 Creative largely approached it as a free speech case. Lorie Smith is engaged in an inherently creative activity, making custom websites for her customers, and the Colorado law would make her design websites that promote a message she disagrees with — a message supporting a same-sex wedding. That’s the sort of compelled speech that the First Amendment typically forbids.
Yet the lower court ruled against Smith, pointing to a test known as “strict scrutiny.”
As a general rule, there are few absolutes under the Constitution. Though laws compelling speech, discriminating on the basis of race, or singling out religious people for inferior treatment are all presumptively unconstitutional, such laws can survive judicial review when they advance particularly important goals — that is, when they advance a “compelling interest” and when the law is “narrowly tailored to satisfy that interest.”
The lower court determined that Colorado has a compelling interest in “ensuring ‘equal access to publicly available goods and services,’” and that the state’s anti-discrimination law is properly tailored to achieve that goal. Exempting Lorie Smith from that law, the court explained, “would necessarily relegate LGBT consumers to an inferior market.”
But the Supreme Court has suggested that preventing anti-LGBTQ discrimination is not a “compelling interest” that can survive the strict scrutiny test. In Burwell v. Hobby Lobby (2014), a majority of the Court concluded that “the Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race,” but it rather pointedly did not state that the government has a compelling interest in preventing anti-LGBTQ discrimination — of, for that matter, in preventing discrimination on the basis of gender.
Moreover, while Masterpiece Cakeshop and Fulton were narrow decisions, both permitted plaintiffs who refused to provide services to LGBTQ individuals to engage in such discrimination.
The Court has been signaling for a while, in other words, that it is likely to grant religious objectors a license to violate laws prohibiting anti-LGBTQ discrimination. At the very least, 303 Creative is likely to give Smith a license to do so, and it could very well give an expansive license to all business owners who claim that their religion requires them to discriminate against LGBTQ people.