The U.S. Supreme Court ruled June 30 that the First Amendment right to free speech can, in certain circumstances, free business owners to violate state laws prohibiting discrimination based on sexual orientation.

The decision arose out of a case in which a wedding website designer asked federal courts to declare she did not have to create wedding websites for same-sex couples.

The vote in 303 Creative v. Elenis was 6 to 3, with Justice Neil Gorsuch (a Trump appointee) writing for the majority. He was joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett, all Republican appointees.

Justice Sonia Sotomayor (an Obama nominee) wrote for the minority, which included Elena Kagan and Ketanji Jackson, all Democratic appointees.

Citing heavily from Supreme Court “controlling precedents” in which LGBTQ people lost ground in the past (Boy Scouts, Irish parade, etc.), Gorsuch wrote, “The framers designed the Free Speech Clause of the First Amendment to protect the ‘freedom to think as you will and to speak as you think.’” He said “the freedom to think and speak is among our inalienable human rights,” that it is “‘indispensable to the discovery and spread of political truth,’” and that “government may not interfere with ‘an uninhibited marketplace of ideas.’”

Gorsuch noted that both sides of the litigation agreed that the web designer, Lorie Smith, created websites to “celebrat[e] and promot[e]” what Ms. Smith understands to be a true marriage” –that between a man and a woman.

To rule otherwise, said Gorsuch, “the government could require ‘an unwilling Muslim movie director to make a film with a Zionist message,’ or ‘an atheist muralist to accept a commission celebrating Evangelical zeal,’ so long as they would make films or murals for other members of the public with different messages.”

“Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage.”

In the opening sentence of her dissent, Sotomayor quoted a conservative majority’s opinion in Masterpiece Cakeshop v. Colorado: “Five years ago, this Court recognized the ‘general rule’ that religious and philosophical objections to gay marriage ‘do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”

“…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,” wrote Sotomayor. “…This is heartbreaking. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims….[T]he law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment. Our Constitution contains no right to refuse service to a disfavored group.”

303 Creative v. Elenis involved a website designer, Lorie Smith, in Colorado who asked federal courts to declare that she had a right to refuse to design wedding websites for same-sex couples. The Alliance Defending Freedom represented Smith in seeking a pre-emptive ruling. Attorney General Aubrey Elenis defended the law of Colorado, whose governor, Jared Polis, is the first openly gay man to be elected governor of any state.

The Alliance, which has led numerous lawsuits seeking to undermine state laws that protect LGBTQ citizens, lost this case in federal district court and in the 10th Circuit U.S. Court of Appeals. The 10th Circuit said Colorado’s public accommodations law was a neutral law of general applicability and that it was not unconstitutionally vague or overbroad, as the Alliance had argued.

The Supreme Court majority decision reversed the 10th Circuit decision yet spent much of its time trying to illustrate ways in which the appeals court and the majority agreed. Justice Gorsuch also spent an inordinate amount of ink defending the majority opinion from Sotomayor’s stinging dissent –which characterized the majority decision as “embarrassing.”

Gorsuch noted that the dissent accused the majority decision of being “akin to endorsing a ‘separate but equal’ regime that would allow law firms to refuse women admission into partnership, restaurants to deny service to Black Americans, or businesses seeking employees to post something like a ‘White Applicants Only’ sign.”

“But those cases are not this case,” wrote Gorsuch. “Doubtless, determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions. But this case presents no complication of that kind.”

The Alliance claimed the web designer sought only the First Amendment right to express herself “in a manner consistent with [her] religious beliefs; [she] does not seek to impose those beliefs on anyone else.” The designer claimed she would serve LGBT people if the message of the website they sought did not conflict with her religious views opposing marriage for same-sex couples.

The Alliance and other extreme right-wing groups have been trying for years to win from the courts a broad exemption from various laws that prohibit discrimination based on sexual orientation and gender identity. They have mostly been rebuffed.

The Alliance’s argument this time was that the designer of wedding websites had “the right to choose what messages her works convey” and that she chose to convey messages to “express what she believes is the beauty of God’s design for marriage.” The Alliance said the Colorado law prohibiting discrimination in public accommodation (including the marketplace) violated the web designer’s First Amendment right to freedom of expression by “forcing” her and other artists “to speak messages that violate their deeply held beliefs.”

LGBTQ groups argued that the Alliance was trying to create an “unbounded exemption” to non-discrimination laws, including the federal Civil Rights Act of 1964, and would be a “dangerous change to longstanding law.”

Jenny Pizer, chief legal officer for Lambda Legal, said she thinks the 303 Creative decision will have “limited practical impact” because “few commercial services involve original artwork.” But she characterized the majority decision as a “dangerous siren call to those trying to return the country to the social and legal norms of the Nineteenth Century….”