Gay Rights vs. Religious Beliefs

The final of the four major Supreme Court cases decided at the end of the 2022-23 term is 303 Creative v. Elenis, in which the court held that a website designer cannot be forced to design a website related to a gay marriage if it violates her sincerely held religious beliefs.

This is another case that probably never should have made it to the court.


Lorie Smith is a website designer who runs a limited liability company known as 303 Creative, LLC.  She wanted to move into creating websites for weddings, but wanted to post a notice on her website to notify users of her unwillingness to create websites promoting same-sex marriages. Such a notice, it turns out, would violate Colorado’s anti-discrimination laws, which prevent businesses which “open their doors to the public” from discriminating against gay people. 

Represented by the Alliance Defending Freedom, Smith sued Colorado preemptively, seeking to block enforcement of the anti-discrimination law. In federal district court, Colorado sought dismissal because Smith had not received such requests, so there was no “live” controversy. Several months later, Smith added a sworn statement that a same-sex wedding request had been submitted to her website (which turned out not to be true).

But the court clearly wanted to rule on the merits here. Just like with the student loan case before it. And so they did.

Case Discussion

Many cases in constitutional law are “balancing” questions, where different interests are balanced against each other. And this case is no exception. On the one side there are the interests of LGBT people (or as they are now sometimes known, LGBTQIA+ people) and on the other side are the sincerely held beliefs of certain religious people (most commonly conservative Christians). 

Should a conservative Christian who sincerely believes that gay marriage is a sin be “forced” to support such a ceremony?

Most reasonable people can probably agree that the answer is no.

But what becomes tricky is when you open a business that is open to the public.

Opening a business that is open to the public makes it a quasi-public forum. Not as public as city hall; not as private as your own home. Retail establishments, where anyone can walk in and shop during business hours are typically a quasi-public forum. And discrimination in those kinds of establishments are not allowed.

That’s why you can no longer refuse to serve black people at a lunch counter.

Now, where one of the prongs of the balancing test involves religious beliefs, this ever-more conservative court has swung firmly in favor of those beliefs in recent years. And so with this case.

There Was No Controversy

The parties in this case are 303 Creative on the one hand and Aubrey Elenis on the other. Aubrey Elenis is the Director of the Colorado Civil Rights Division, the agency charged with enforcing Colorado’s anti-discrimination. She is an appropriate party if you seek to enjoin the state from enforcing its laws. 

In federal district court, Colorado sought to have the case dismissed because Smith had not received any requests to create websites for a gay wedding, and therefore had no “justiciable injury.” In response, Smith added a sworn statement that a same-sex wedding request had been submitted to her website. However, that turned out not to be true.


The New Republic reported that the man who allegedly sent the request — and whose, email, address and phone number were submitted — turns out to be married to a woman for many years, to have a child, and to be a website designer himself. He had never submitted such a request.


Smith’s attorneys scrambled to explain the incongruity, theorizing that maybe the information had been submitted by “trolls” on the Internet. 

So, before making this filing, no one had ever checked whether this guy had actually submitted such a request?


The Supreme Court could easily have avoided deciding this case in the absence of a “live” controversy. But clearly, they wanted to decide it.

What will the Consequences Be?

Truthfully, that is hard to assess. There probably won’t be all that many website designers, or bake shops, or other merchants who refuse to provide services to gay couples.

But the precedent has been set.

As Justice Sotomayor noted in her dissent:

Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.

Where that will lead to is not known, but it sure ain’t a good thing.

About a1skeptic

A disturbed citizen and skeptic. I should stop reading the newspaper. Or watching TV. I should turn off NPR and disconnect from the Internet. We’d all be better off.
This entry was posted in Politics. Bookmark the permalink.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.