In a much anticipated decision, the US Supreme Court (by 6-3) in  303 CREATIVE LLC v. ELENIS 600 U. S. _ (2023) (30 June 2023) has ruled that a Christian graphic designer cannot be required by Colorado law to produce websites supporting and celebrating same-sex weddings, contrary to her religious beliefs. The ruling was based on the US First Amendment protection of free speech, and sets out a principle that the government cannot compel citizens to say what they object to saying, in an “expressive” business like web design, even if that business provides services to the public. It seems clearly correct, and will be helpful in protecting free speech on a range of issues, but in particular will support religious freedom. But, contrary to some comment, it is not a “license to discriminate”. The decision does not allow refusal of ordinary commercial services to same-sex attracted people. It only relates to the sort of artistic and expressive work engaged in by the designer.

The case arose because the owner of the company 303 Creative, Lori Smith, was a committed Christian who wanted to use her skills in web design to offer for sale custom websites for weddings. However, her religious beliefs included that “marriage should be reserved to unions between one man and one woman” (at p 2). But she knew that the State of Colorado had a law, the Colorado Anti-Discrimination Act (CADA), which required all business owners who supplied services to the public not to discriminate against members of the public on a range of grounds, including sexual orientation. She believed that if she started up a wedding business, this State law would be applied to her, and she would be required to produce websites celebrating same-sex weddings. She sought a declaration from the courts that the First Amendment would mean that this aspect of CADA was invalid.

The decision of the majority here, written by Gorsuch J, refers very heavily to a number of
“stipulations” (agreed points) by the different parties. These were very important, because they delineated the specific set of facts to which the decision applied. They were as follows (from pp 4-5):

• Ms. Smith is “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender,” and she “will gladly create custom graphics and websites” for clients of any sexual orientation… 
• She will not produce content that “contradicts biblical truth” regardless of who orders it...
• Her belief that marriage is a union between one man and one woman is a sincerely held religious conviction…
• All of the graphic and website design services Ms.Smith provides are “expressive.”.. 
• The websites and graphics Ms. Smith designs are“original, customized” creations that “contribut[e] to the overall messages” her business conveys “through the websites” it creates…
• Just like the other services she provides, the wedding websites Ms. Smith plans to create “will be expressive in nature.”.. 
• Those wedding websites will be “customized and tailored” through close collaboration with individual couples, and they will “express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage… 
• Viewers of Ms. Smith’s websites “will know that the websites are [Ms. Smith’s and 303 Creative’s] original artwork.”..
• To the extent Ms. Smith may not be able to provide certain services to a potential customer, “[t]here are numerous companies in the State of Colorado and across the nation that offer custom website design services.”..

These stipulations show what the decision was not about. It was not about discriminating in general against gay persons. The case was brought in advance of any specific request for a same-sex wedding website, because Ms Smith had a very reasonable fear that the Colorado law would be enforced against her if she established the business as she planned. That her fear was reasonable was found by the lower appeals court which had ruled against her:

“Colorado has a history of past enforcement against nearly identical conduct—i.e., Masterpiece Cakeshop”; that anyone in the State may file a complaint against Ms. Smith and initiate “a potentially burdensome administrative hearing” process; and that “Colorado [has] decline[d] to disavow future enforcement”proceedings against her. 

Gorsuch J, at p 5.

In this situation it was irrelevant that no actual request for a same-sex wedding site had been made before Ms Smith’s case was filed. (The fact that after her case was publicised in the press, someone apparently sent through a request of this sort, was not relevant in these circumstances. Whether that request was genuine or a hoax has been debated- but it did not play a role in the court’s decision.)

In the end, the majority decision relies on established Supreme Court precedent to hold that the First Amendment protection of free speech means that the government cannot tell individuals what to say. To require web designer to use her creative skills to celebrate a form of relationship she believes to be sinful, would be a serious detriment to her freedom to speak, or not to speak.

Gorsuch J’s concluding summary says it better than I can:

In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. In the past, other States in Barnette, Hurley, and Dale have similarly tested the First Amendment’s boundaries by seeking to compel speech they thought vital at the time. But, as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong. Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider “unattractive,” post, at 38 (opinion of SOTOMAYOR, J.), “misguided, or even hurtful,” Hurley, 515 U. S., at 574. But tolerance, not coercion, is our Nation’s answer. 

Gorsuch J, at pp 25-26

The majority acknowledge that this decision does not resolve all the issues that might be raised. In particular, those of us who have followed the “wedding cake” cases wonder whether the logic of this decision will apply to a Christian baker who declines to make a bespoke cake for a same-sex wedding. Gorsuch J comments that:

Doubtless, determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions.

Gorusch J, at 21-22

So this case does not explicitly resolve the question. But it seems fairly clear that the logic of the decision would indeed protect a baker who applies artistic skill to create custom cakes to celebrate weddings. Indeed, in a rare example of the US Supreme Court citing the UK Supreme Court, there is a footnote (n 3 on p 18) mentioning Lee v. Ashers Baking Co. Ltd. [2018] UKSC 49. In that decision (summarised here), the highest appeal court in the UK held that it was not unlawful for a Christian bakery to decline to produce a cake with a message advocating for same-sex marriage.

The decision here is an important statement that discrimination laws do not over-ride the protection of free speech in the US. So far this issue has not directly arisen in Australia, and the outcome would be less clear in a country like ours with limited over-riding protection for free speech. But the distinction between providing general services, and being required to support a message one objects to, is an important one which has now been recognised at the highest level in the USA and the UK. Hopefully such a distinction will also be recognised in any future litigation of this sort in Australia.