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The U.S. Supreme Court is expected to rule in favor of a website designer who wants to refuse to provide wedding-related services to same-sex couples, say many experts.
But the likely pro-business ruling in 303 Creative LLC; Lorie Smith v. Aubrey Elenis could take several different forms, and it remains unclear whether it will have a significant practical effect on employers’ anti-discrimination policies.
Littleton, Colorado-based Ms. Smith, who has not begun to offer wedding-related services, had filed a “pre-enforcement challenge” to Colorado’s Anti-Discrimination Act, enacted in 2008, which restricts the ability of businesses in the state to refuse to provide services based on a customer’s sexual orientation. She is seeking permission to deny the services to same-sex couples because of her religious beliefs.
In its July 2021 ruling in the case, the 10th U.S. Circuit Court of Appeals in Denver affirmed a lower court ruling against Ms. Smith. It ruled that the First Amendment’s guarantee of free speech “does not protect Appellant’s proposed denial of services.”
The U.S. Supreme Court accepted the case for review in February, and oral arguments, which have not yet been scheduled, are expected to be held later this year.
The case is considered a follow-up to the U.S. Supreme Court’s 2018 ruling in Masterpiece Cakeshop Ltd. et al. v. Colorado Civil Rights Commission et al., in which it ruled in favor of a bakery owner who refused to prepare a wedding cake for a same-sex couple.
The narrowly written and case-specific Masterpiece ruling was based on comments made at the Colorado Civil Rights Commission hearing, including one in which a commissioner reportedly disparaged the bakery owner’s religious beliefs.
The Masterpiece ruling “avoided the direct question of whether or not business owners can deny goods and services under anti-discrimination laws,” said Vincent M. Rizzo, a partner with Hinshaw & Culbertson LLP in Chicago.
Mr. Rizzo said that in its 303 Creative ruling the court will focus on “the more tailored question of how to address nondiscrimination laws and the interaction with religious expression.”
One of the questions the case raises is whether Ms. Smith’s free speech rights would be violated by compelling her to create a website for same-sex weddings, said David S. Flugman, a partner with Selendy Gay Elsberg PLLC in New York.
There are three likely ways the court might rule, said Lisa A. McGlynn, a partner with Fisher & Phillips LLP in Tampa, Florida: Hold that the Colorado law is constitutionally problematic, uphold the law or take more of a Masterpiece-like procedural approach and rule there has been no harm yet because the business is not operational.
Many believe the ruling will be in the plaintiff’s favor, given the six conservatives on the court. Since the 2018 ruling, Trump appointee Brett Kavanaugh replaced centrist Anthony Kennedy and Amy Coney Barrett, also a Trump appointee, replaced liberal Ruth Bader Ginsburg as associate justices of the Supreme Court.
“The bigger question is, how will they get there, and how broad are the rights that the court is likely to say need to be protected,” said Christopher Jackson, a partner with Holland & Hart LLP in Denver.
Paul E. Starkman, a member of law firm Clark Hill PLC in Chicago, said, “My guess is they want to carve out a business rule exception” to LGBTQ anti-discrimination rules based on religious persons’ right of free speech.
A ruling in Ms. Smith’s favor would have the most immediate impact in Colorado but would be a persuasive precedent in other states that have similar laws, he said.
Such a ruling would create an issue with respect to federal protection as well as with regard to states that have anti-discrimination laws based on sexual orientation, Mr. Starkman said.
Ruling in the plaintiff’s favor would mean that business owners with religious views could “run their businesses in a way that allows them not to service entire, large categories of people based on their religious views,” said Ashley I. Kissinger, of counsel with Ballard Spahr LLP in Boulder, Colorado.
However, “it’s hard to imagine this case would require (employers) to change anything, no matter what the outcome would be,” said Nicholas J. Nelson, counsel with Faegre Drinker Biddle & Reath LLP in Minneapolis. Businesses are already compliant with nondiscrimination statutes, he said.
With so many state and local laws already protecting the LGBT community, “the impact of this, in reality, in the workplace would be very, very small,” said Eric B. Meyer, a partner with FisherBroyles LLP in Philadelphia.
Reactions may be “state-specific,” Ms. McGlynn said. While some states may react by seeking more LGBT protections, in others there may be legislation that supports Ms. Smith’s position, and the issue may be decided by federal law.