ONLY ABOUT a quarter of Americans supported same-sex marriage in 1996. By 2015, when the Supreme Court held in Obergefell v Hodges that gay nuptials were a constitutional right, that figure had jumped to 60%. Seven years after that landmark ruling, nearly three-quarters of Americans approve of gay marriage. Even with bipartisan legislation nearing passage in Congress, opposition to the practice, much of it on religious grounds, persists. And the Supreme Court is still reckoning with Justice Anthony Kennedy’s acknowledgement in Obergefell that, despite the advent of the right, same-sex-marriage opponents’ views are “decent and honourable”, and neither they nor their beliefs should be “disparaged”.
A clash between a gay couple and a Christian baker who refused to make them a wedding cake occupied the justices in 2018. Although the baker in Masterpiece Cakeshop v Colorado Civil Rights Commission, Jack Phillips, prevailed, the court sidestepped the crux of the dispute. The question returned on December 5th in the guise of 303 Creative v Elenis: does the First Amendment protect Lorie Smith, a web designer who says her beliefs about marriage preclude her from creating websites for gay weddings?
The justices agreed to consider 303 Creative as a matter of freedom of speech (a broader lens) rather than the free exercise of religion. In another contrast to Masterpiece Cakeshop, which featured two men who were thwarted in their quest for a cake, 303 Creative is short on facts. Ms Smith has not yet made a wedding website. She wants to enter the market and pin a statement on her website declaring she’ll design for straight weddings only—but says she fears Colorado will burden her with fines and other legal action.
Both sides agree that Ms Smith cannot turn away customers based on their identity alone. They disagree on whether, as a shop open to the public, she has a right to turn away gay couples seeking wedding websites. The dearth of facts is frustrating, Justice Elena Kagan told Brian Fletcher, a deputy solicitor-general in the Biden administration and one of two lawyers who argued against Ms Smith’s position. Weighing the two competing constitutional values is a challenge, Justice Kagan acknowledged, and hypothetical conundrums point in opposite directions.
It was a hypothetical-filled hearing that ran twice as long as its allocated 70 minutes. Kristen Waggoner, the lawyer for Ms Smith, began by stating that her client “believes opposite-sex marriage honours scripture and same-sex marriage contradicts it”. But she was flat-footed in replying to tough queries from Justices Kagan, Ketanji Brown Jackson and Sonia Sotomayor. Reflecting on her current clerks’ wedding websites (two are engaged, she disclosed), Justice Kagan pointed out how utilitarian such sites can be. They note hotel accommodations, list things to do in town and offer a link to a registry where guests can buy gifts. Would Ms Smith be acting within her rights to deny such a non-ideological, non-celebratory website to gay couples? Or is this sheer discrimination based on the identity of potential clients?
Ms Waggoner replied that ideology is baked into any website Ms Smith might create for a gay wedding. The lawyer’s answer was similarly terse in reply to the idea of a holiday business imagined by Justice Jackson that would capture images of the “good old days” reminiscent of “It’s a Wonderful Life”, a Christmas film from 1946. If Ms Smith were to win, could “Scenes With Santa” refuse to photograph black children on the ground they would look out of place in such sepia-toned photos of yesteryear? That’s an “edge case”, Ms Waggoner replied, before saying everyone’s speech must be protected.
Justices Samuel Alito and Amy Coney Barrett swooped in to save Ms Waggoner with softball questions and their own answers to the hypotheticals. They and the other four conservative justices took up her duties when Mr Fletcher and Eric Olson, Colorado’s solicitor-general, rose for turns at the lectern. Mr Olson began by warning that a win for Ms Smith would constitute a “licence to discriminate” for professionals well beyond web designers. Everyone from “architects to photographers to consultants” would be empowered to “refuse service to customers because of their disability, sexual orientation, religion or race”.
Shaking his head, Justice Alito noted Colorado’s acknowledgement that Ms Smith could include “a denunciation of same-sex marriage” in every wedding website she creates, as long as she sells them to gay and straight customers alike. Doesn’t that make the state’s position “kind of a sliver of an argument” that may not make “any difference in the real world as a practical matter?” After all, how many gay couples would patronise a graphic designer who insists on such messages?
He reiterated the question to Mr Fletcher, characterising the position as “silly”. Mr Fletcher defended the idea with the example of a store that sells exclusively Jewish products. There’s nothing wrong with such a business, he said, even if it is not likely to appeal to Christians or Hindus. “But no one”, he said, “thinks the store is violating the public accommodations laws” unless it bars Christians or Hindus from entering the store
All six members of the Supreme Court’s conservative majority seemed sympathetic to Ms Smith’s plea. All six expressed concern that, if she were to lose, many businesses would be forced to, in Justice Alito’s words, “espouse things they loathe”. As for slippery-slope concerns from the other side—that anti-discrimination laws would lose all teeth if Ms Smith wins—Justice Alito hearked back to the majority opinion in Obergefell (from which he vehemently dissented). The Supreme Court’s “imprimatur” on Ms Smith’s refusal to make gay-wedding websites would not usher in an era of marketplace racism or discrimination against people with disabilities. Do you think Justice Kennedy would have said that it’s “honourable” to discriminate on these bases, Justice Alito asked? “No”, Mr Olson replied, “I don’t think so”. ■