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LGBTQ+ Rights, Religious Freedom, and the Loophole of “Expressive” Discrimination

By Kennedy Kibler

Edited by Jackie Pillow, Jia Lin, and Vedanth Ramabhadran


Until recently, the Supreme Court has managed to avoid truly addressing the ongoing conflict between LGBTQ+ rights and freedom of speech, specifically when it comes to religion. This is a highly sensitive and evaded topic because both sides are unwilling to compromise, as “religious liberty and nondiscrimination are understood as moral absolutes.” [1] Essentially, those in support of LGBTQ+ rights feel that allowing any exception to anti-discrimination laws will set them back in being seen as equals within society. On the other hand, religious conservatives feel that they are sacrificing their beliefs to accommodate another group within society. This prolonged issue has finally come to its climax with the recent decision in 303 Creative v. Elenis during July of 2023. The Court sided with plaintiff Lorie Smith, holding that she is allowed to refuse creating wedding websites for LGBTQ+ couples. This decision was grounded in the thought that compelling Smith to convey a message contrary to her beliefs would violate her First Amendment rights. The Supreme Court’s response to the fight between LGBTQ+ rights and religious freedom of speech will impact future debates and decisions as the United States continues to search for a common ground between principles of equality and religious expression. However, the courts' reactive and polarized disposition constrains the scope of these rulings, leaving unresolved questions in its aftermath.

Prior to the 303 Creative v. Elenis decision, the Supreme Court delivered many diverging opinions in response to the overarching question of whether or not a business has the constitutional right to discriminate based on the beliefs of its owner. These decisions primarily upheld anti-discrimination laws (meaning a business could not discriminate), but varied case-to-case. As a result, the Supreme Court left many questions unanswered, intensifying the division between supporters of the LGBTQ+ community and religious conservatives. Generally the U.S. has lagged behind other developed nations in LGBTQ+ rights, with the biggest breakthrough coming in 2015 when same-sex marriages were nationally recognized under Obergefell v. Hodges. [2] Following this breakthrough, advocates of LGBTQ+ rights argued that Title VII employment protections included all sex-based discrimination, and prior to the Trump Administration, the U.S. Equal Employment Opportunity Commission agreed with this assessment. This changed when a memorandum issued on behalf of the Trump Administration in 2017 stated: “Title VII’s prohibition on sex discrimination does not encompass discrimination based on gender identity per se, including transgender status.” [2] Due to the ambiguity in the interpretation of sex discrimination in Title VII, many cases concerning sex discrimination in the workplace ensued. For instance, the case of Zarda v. Altitude Express (2020) involved Donald Zarda, a skydiving instructor, filing a lawsuit against his former employer, Altitude Express, alleging unlawful termination on the basis of his sexual orientation. The Second Circuit ruled in favor of Zarda, stating that discrimination based on sexual orientation constitutes a violation of Title VII. Another example in 2020 was the decision of EEOC v. R.G. & G.R. Harris Funeral Homes, involving gender identity discrimination. The EEOC filed a lawsuit on behalf of Aimee Stephens, a transgender woman, who was terminated from the funeral home for dress code concerns after her transition. This case raised the question of whether or not Title VII includes discrimination based on gender identity, and the Sixth Circuit Court of Appeals affirmed the district court’s ruling that discrimination against an employee because of their transgender status is a form of sex discrimination prohibited by Title VII. Despite cases that upheld protections against sex-based discrimination, there were still cases that did the opposite. For example, in the case of Bostock v. Clayton County (2020), Gerald Bostock joined a gay softball team and was fired for conduct that was “unbecoming” of a county employee. The district court dismissed the suit under the notion that Title VII did not protect employees from discrimination based on sexual orientation; the Eleventh Circuit Court of Appeals then affirmed the dismissal. Each of these cases involved an LBGTQ+ employee who was terminated on the basis of their gender or sexual identities; yet, despite the similar circumstances of the cases, diverging decisions were delivered. 

Ultimately, these three cases were consolidated for the Supreme Court to directly address the question of whether Title VII protects LGBTQ+ employees from employment discrimination. The Court ruled, “An employer who fires an individual merely because they are gay or transgender defies the law.” [2] This decision was influential for LGBTQ+ rights because it defined the breadth of the term “sex” in Title VII. Although these cases did not involve religious objections to the LGBTQ+ community or their marriages, they were vital in applying sex-discrimination provisions to cover LGBTQ+ employees. [3] Further, Congress has since enacted many laws to prohibit discrimination in settings like education, housing, and healthcare. For example, there are “over 100 federal laws prohibiting discrimination based on sex, and almost all states prohibit discrimination based on sex in employment, housing, public accommodations, and other settings.” [4] The universal definition of “sex” in Title VII as well as state-specific discrimination laws developed alongside these legal proceedings become especially important when analyzing the fight between equality and religious expression.

In addition to instances of workplace discrimination, numerous cases arose that pertained to discrimination directed at customers, and this national controversy has courts divided. The first major case in this category was Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018). In this case, Charlie Craig and Dave Mullins went to the Masterpiece Cakeshop to order a cake for their wedding from Phillips, who told them he would not make cakes for same-sex marriages. Colorado’s Anti-Discrimination Act (CADA) stated that it is a discriminatory practice “for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of... sexual orientation ... the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.” [5] Due to these provisions, the couple filed a complaint with the Colorado Civil Rights Division, which decided that Phillips violated CADA. This decision was affirmed by the Civil Rights Commission. During this hearing, however, some commissioners made comments that displayed “hostility toward the sincere religious beliefs that motivated [Phillip’s] objection.” [5] This extra level of complexity raised the issue of a possible bias the Commission held against Phillips' religious convictions. Concerns also arose regarding the inconsistent treatment of analogous cases involving three Denver bakeries who were asked to make Bible-shaped cakes with offensive messages about the LGBTQ+ community. The Colorado Civil Rights Division found no violation in the bakers' choice in refusing to make these cakes. Thus, the offensive messages would be considered an aspect of the cake shops' products. Yet in the Masterpiece Cakeshop case, the same division determined that the message should be attributed to the customer, not to Phillips. Hence, there was a notable disparity in these rulings that the Supreme Court viewed as inconsistent in principle. As a result, the Supreme Court reversed the decision of the Colorado Court of Appeals, holding that Phillip’s freedom of religious speech had been violated. [6] This decision was extremely controversial, as many saw it as a setback in expanding the equal rights protections. It also sparked inquiries about the First Amendment regarding the boundaries of freedom of speech and its implications concerning religion and same-sex marriage. This case was also significant because it presents what has become a pattern: a gay couple asks a vendor to provide services involving their wedding, and they refuse based on religious convictions. [7] However, because of the nature of the disparity in rulings, this case was something unique in nature itself. Instead of addressing the substantive aspects of the case, the court primarily concentrated on the lack of religious neutrality and synonymous decisions of the specific Commission’s ruling(s). Therefore, it provided little direction for the cases to follow.

In 2019, the case of Arlene’s Flowers, Inc. v. Washington involved a florist who refused to provide services to a same-sex couple for their wedding, citing religious beliefs as the reason. The Washington Supreme Court ruled against the florist, affirming the state’s anti-discrimination law. The florist claimed that the “First Amendment forbids states from forcing her to provide creative services for ceremonies that violate her religious beliefs.” [8] In determining if the issue was “inherently expressive” the court decided that the decision to provide flowers for a wedding does not express a message about it. The court held that “Stutzman’s free speech rights were not violated because floral design is not art and is not inherently expressive, and that compelled speech is not involved because Stutzman was in no way required to participate in a same-sex wedding.” They also concluded that her right to free exercise of religion and hybrid rights claim were not violated. [5] If the floral arrangement had been considered art, and therefore “inherently expressive,” this could have had a result similar to Masterpiece Cakeshop. This case highlights the need for a solidified definition for what constitutes “expression” in terms of freedom of speech, and this will continue to implicate future cases.

Brush & Nib Studio v. City of Phoenix (2019) followed the Masterpiece Cake decision and was of a comparable nature. The Masterpiece Cake opinion must be examined on a level further than merely “win” or “loss” because just days later, “the Arizona Court of Appeals rejected a claim that a company that designs artwork for weddings can refuse to provide goods for same-sex weddings.” [9] The same group that represented Phillips, Alliance Defending Freedom, represented Brush & Nib Studio, which sells specially designed art. This company sought a preliminary injunction, which is “temporary relief that preserves the status quo until the courts decide on the merits of the case.” [10] This was a proactive attempt in protecting themselves from future cases if customers requested products for a same-sex wedding by ceasing enforcement of the anti-discrimination ordinance in Arizona. The city of Phoenix won in lower courts, and the Arizona Supreme Court reversed the decisions in September 2019, ultimately ruling in favor of the artists. [11] On one hand, the city “contended that refusing to create or sell custom wedding invitations for use in same-sex weddings was discriminatory conduct prohibited by the public accommodations law, and any expression (or silence) by the business or artist is merely incidental to that conduct.” [12] On the other hand, The Arizona Supreme Court held that the wedding invitations were “pure speech” because they had calligraphy, hand-drawn words/images, and original artwork, with artists who were intimately connected to them. The court also noted that the Ordinance is enabled to regulate conduct, not speech, using strict scrutiny to make their decision. Ultimately, this case illustrates a prominent example of the courts making narrow decisions that avoid offering a unified answer to the underlying issue.

All of these cases, along with their lingering uncertainties, come down to the same pivotal question: Does offering services to the LGBTQ+ community conflict with the freedom of speech, freedom of exercise, or freedom of association for business owners with religious beliefs? Further, what is considered expressive conduct and symbolic speech? The Supreme Court finally tackled this matter in 303 Creative v. Elenis. In this case, Lorie Smith wanted to include wedding websites in the services she offers in her graphic design business but worried that the Colorado Anti-Discrimination Act would force her to endorse marriages that contradict her religious beliefs. To prevent this, Ms. Smith filed an injunction lawsuit. As a reminder, CADA “prohibits all ‘public accommodations’ from denying ‘the full and equal enjoyment’ of its goods and services to any customer based on his race, creed, disability, sexual orientation, or other statutorily enumerated trait.” [13]  Smith argued that the websites she plans to create for customers are expressive in nature, and she would not create any that are contradictory to the biblical truth, no matter who orders it. She said each website would be custom and created through close collaboration with the couple. She also stated that the website would be seen as her original work and therefore convey a message to any viewers. Based on these facts, the district court decided that Ms. Smith was not entitled to the injunction, and the Tenth Circuit affirmed this. The case was then sent to the Supreme Court which held that “The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.” [14] Ultimately, the heart of this issue, like the others, came down to the Free Speech Clause in the First Amendment, which states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” [14] Smith’s creation of website designs were decided to be “pure speech” and “expressive.” The Court of Appeals turned to strict scrutiny, however, questioning whether the speech was compelled speech or content-based restriction, and analyzing the public accommodation laws in Colorado that ensured a free economy. In the end, it was decided that this was a compelled speech issue, meaning that the government could not force an individual, Ms. Smith in this case, to express certain beliefs/messages due to her freedom of speech rights. [15] Reactions to this ruling were notably conflicting. While one side of the debate felt that their First Amendment rights had been upheld, the other side felt that the Supreme Court was significantly weakening protections against discrimination on the basis of sexual orientation. In this sense, this decision reads as permission to “creatively discriminate,” a loophole, one may argue. [14] As a result, some are concerned with the ability of businesses to discriminate using “free speech,” with worries that this may extend to other instances of discrimination.

So what was truly different about this case in comparison to the others? Very little. The sensitive aspect of this case, and all of the others, lies in distinguishing between innumerable goods/services that do not implicate the First Amendment versus expressive goods/services that are considered protected speech. Thus, future decisions of cases of a similar nature will lie in the inherently “expressive” nature of the good/service, such as wedding cakes and flower arrangements. Yet, neither this case nor the court has defined what expressive means. Further, the courts have yet to define a situation in which combating discrimination may justify an opposition to First Amendment rights. For example, Justice Sotomayor pointed out that the First Amendment does not “prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.” [16] The collision between religious freedom of speech and LGBTQ+ rights seems to fuel a perpetual fire, one legal decision at a time. Ultimately then, this is a topic that will continue to be guided by case law in an era of a very polarized court system, until statutory law evolves to account for emerging perspectives on the way society views First Amendment rights in the face of discrimination.

 

[1] Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (2020).

[2] John Dayton & Micah Barry, LGBTQ+ Employment Protections: The U.S. Supreme Court's Decision in Bostock v. Clayton County, Georgia and the Implications for Public Schools, 35 WIS. J. L. GENDER, & SOC'y 115 (2020).

[3] Jess Bravin, Supreme Court to Hear Case of Website Designer Who Won’t Do Same-Sex Weddings; Case of Website Designer Represents Significant Clash between LGBT and Religious Rights, The Wall Street Journal, Feb. 22, 2022, https://www-proquest-com.ezproxy.lib.utexas.edu/docview/2631659583/fulltext/E6562E7A52F2409BPQ/1?accountid=7118&sourcetype=Newspapers.

[4] Christy Mallory, Luis Vasquez & Celia Meredith, Legal Protections for LGBT People After Bostock v. Clayton County (2020).

[5] Mike Steenson, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 45 MITCHELL HAMLINE L. REV. 57 (2019).

[6]James Hart, When the First Amendment Compels an Offensive Result: Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 79 LA. L. REV. 419 (2018).

[7] Mark Movsesian, MASTERPIECE CAKESHOP AND THE FUTURE OF RELIGIOUS FREEDOM, 42 Harvard Journal of Law & Public Policy 712, https://journals.law.harvard.edu/jlpp/wp-content/uploads/sites/90/2019/06/Movsesian-Final.pdf.

[8]Supreme Court Won’t Revisit LGBTQ Wedding Wars - Law360, https://www.law360.com/articles/1235883/supreme-court-won-t-revisit-lgbtq-wedding-wars (last visited Mar 31, 2024)

[9]Leonard, Arthur S., "Citing Baker’s “Win,” Arizona Court Rejects Stationary Store’s Opt-Out Claim" (2018). Other Publications. 350.

[10] How to File a Preliminary Injunction, Bloomberg Law (Feb. 23, 2023), https://pro.bloomberglaw.com/insights/litigation/how-to-file-a-preliminary-injunction/ (last visited Mar 28, 2024).

[11]Jon Swaine & Beth Reinhard, Inside the Tactics That Won Christian Vendors the Right to Reject Gay Weddings., The Washington Post, Sep. 28, 2023, https://go-gale-com.ezproxy.lib.utexas.edu/ps/i.do?id=GALE%7CA766963678&sid=sitemap&v=2.1&it=r&p=AONE&sw=w&aty=ip&enforceAuth=true&linkSource=delayedAuthFullText&oweAuth=true&userGroupName=txshracd2598&u=txshracd2598.

[12] Locke Adair, Freedom of Expression and Artistic Public Accommodations: The Right to Manifest One's Inner State, 15 LIBERTY U. L. REV. 1 (2020).

[13]CREATIVE LLC ET AL. v. ELENIS ET AL. , (2023).

[14] Lydia E. Lavelle, Freedom of Speech: Freedom to Creatively Discriminate?, 29 CARDOZO J. EQUAL RTS. & SOC. JUST. 69 (2022).

[15] Protecting Equality or Correcting Thoughts? –, https://perma.cc/UYW4-48PC (last visited Mar 28, 2024).

[16]Michael L. Smith, Public Accommodations Laws, Free Speech Challenges, and Limiting Principles in the Wake of 303 Creative, (2023), https://papers.ssrn.com/abstract=4565198 (last visited Mar 28, 2024).


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