Freedom of Religion vs. LGBT Rights

Supreme Court of the United States ends marriage discrimination - Obergefell vs Hodges

Remember the baker Jack Phillips in Colorado?  He denied making a wedding cake for a gay couple because he didn’t believe in same-sex weddings.  His insistence made headlines over ten years ago.  In 2018, the penalty was thrown out of the court and never resolved.

A similar case was argued by the Supreme Court this week.  Lorie Smith is a graphic designer who thinks that designing a website for gay couples violates her freedom of religion.  A devout Christian, her reasoning echoes Jack Phillips: a ruling for the state would allow the government to force “artists” to state things at odds with their beliefs.  It’s Free Speech vs. anti-discrimination rights.

Lorie Smith, No Stranger to The Courts

Smith wanted to post a notice on her business website 303 Creative LLC that alerts users that she would not be willing to serve members of the gay community, but would refer them to other potential designers.  However, she would not be able to do this because she discovered that such a notice would violate Colorado’s anti-discrimination state laws that were amended in 2008, which prevents public businesses from discriminating against LGBT people as well as making statements to that effect:  “an individual’s patronage or presence is unwelcome, objectionable, or undesirable because of disability, race, creed, color, sex, sexual orientation, marital status, national origin or ancestry.”

In 2016, Ms. Smith sued Colorado in the U.S. Court for the District of Colorado to block the reinforcement of the anti-discrimination law she lost in 2019.  Smith appealed to the U.S. Court of Appeals for the Tenth Circuit, which upheld the district court decision in a 2-1 ruling.  The 10th Circuit law held the anti-discrimination law that satisfied the strict scrutiny under the First Amendment to the U.S. Constitution.

In February 2022, Smith filed a petition for a writ of Certiorati which the Supreme Court granted.  While the petition asked whether the Employment Division v. Smith should be overruled, the Supreme Court limited the case to the question of whether Colorado’s law violates the Free Speech Clause of the First Amendment.

The LGBT Community’s Position

The LGBT community does regard Smith’s point of view as discriminatory.  Does the government have the right to compel the “artists” to express messages that contradict their beliefs? Twenty liberal leaning groups such as Public Citizen, American Civil Liberties Union and The NAACP Legal Defense Fund have all backed the LGBT community.  GLAAD filed a brief “the petitioners seek would undermine bedrock protections provided by state and federal public accommodation laws for over a century.” The Biden Administration and twenty liberal states are in favor of the LGBT community’s position. Justice Elena Kagan says that “sites are not particularly ideological or religious.  The dispute in Smith’s case is not about the content of speech, but instead Smith’s resistance to its use in same-sex weddings.  At the oral arguments, Justice Sonia Sotomayor asserted that a ruling for Smith would be the first time that the Supreme Court had ruled that commercial businesses could refuse to serve a customer based on race, sex, religion or sexual orientation.

Conservative-leaning Justices

Supreme Court Justice Neil Gorsuch told Kristen Waggoner, Ms. Smith’s lawyer with the advocacy group Alliance Defending Freedom who represents Ms. Smith, “that it’s not a question of who, it’s what.” Chief Justice John Roberts thinks that the Supreme Court has never approved efforts to compel speech that is contrary to the speaker’s beliefs and if so, is the message affected by the speech it was required to accommodate.  Twenty conservative leaning think tanks and states have the back of Smith.

What Will Happen Remains to be Seen

The timing is bad as The House has just passed The Defense of Marriage Act for same-sex couples and mixed races.  Will the state punish Lori Smith?  Colorado targets only the conduct of refusing to sell that product to LGBT people.  There’s a legal difference between saying no because you’re celebrating a gay (discriminates on the basis of identity) and saying no because you’re celebrating a gay wedding (discrimination on the basis of the marriage).  The public may not know the outcome of this important case before July 2023.

Sources:, The New York Times, December 5, 2022, The Wall Street Journal, December 6, 2022.

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Wesley Cullen Davidson

Wesley Cullen Davidson is an award-winning freelance writer and journalist specializing in parenting as well as gay and lesbian content. For the past two years, Wesley has concentrated almost exclusively on the lesbian and gay community, specifically on advising straight parents of gay children on how to be better parents and raise happy, well-adjusted adults

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