ANOTHER RULING ON SAME SEX MARRIAGE?

I came across an interesting article about a case the U.S. Supreme Court will be taking up next term.  The case is 303 Creative v. Elenis.  The question presented is whether a wedding website designer can defy Colorado’s Anti-Discrimination Act and refuse to service same sex couples based on her religious beliefs.

Previously, in a case involving a wedding cake designer, SCOTUS held that the cake designer could decline a same sex couple’s business based on his religious beliefs.  But in that case, the Court avoided the underlying constitutional issue and based its finding on comments made by members of the Colorado Civil Rights commission which demonstrated a lack of neutrality.  Presumably, there are no such facts in this case.

The constitutional issue is whether the website designer’s rights to religious freedom and her right to be free from compelled speech are sufficient to overcome Colorado’s interest in preventing discrimination on the basis of sexual orientation.  This should be an interesting decision.  There is no indication that the Court will use this case to overturn the precedent recognizing gay marriage, but given Justice Thomas’s concurring opinion in the Dobbs case (which overturned Roe v. Wade) on can’t be too sure.

More likely, given the Court’s current composition, I expect the Court to side with the web designer.  The question then is how broad will the ruling actually be? The more narrow ruling would be that because a web design involves expressive conduct, the designer can’t be compelled to submit work that conflicts with her religious beliefs.  A ruling like this I think would confine the ability of wedding suppliers to opt out of same sex ceremonies. The question would be to what extent would the service involve expression.  In that case, it’s hard to see how a caterer or liquor supplier could opt out.  But it leaves the door open for florists, bands and other creatives to skip same sex ceremonies.

Come the first Monday in October, SCOTUS will begin the term, so the wait on this decision will be over in the near future.  But that may unleash a whole set of new questions.