Published December 1, 2022
This week, the Senate voted in favor of the so-called Respect for Marriage Act, which would provide federal statutory protections to same-sex marriages (or any other “marriage” recognized by a state government). The act raises serious concerns about its impact on religious freedom and free speech for individuals and organizations that believe marriage should be between only one man and one woman.
Next week, the Supreme Court will hear oral arguments in 303 Creative v. Elenis. At issue in the case is whether Colorado can compel Lorie Smith, a Christian website designer and founder of 303 Creative, to design custom websites for same-sex weddings if she designs custom websites for male-female weddings. The case involves Colorado’s Anti-Discrimination Act (CADA), which prohibits discrimination in public accommodations on the basis of sexual orientation, among other characteristics. Colorado is using CADA to force Lorie to speak a government-approved message about same-sex relationships — a message with which she disagrees and which violates her religious beliefs about marriage.
Colorado argued this case was about “using religion to perpetuate discrimination” against same-sex couples. Indeed, some in the media have characterized the case as yet another example of religion vs. LGBT rights. Never mind that Colorado agreed Lorie serves everyone, including those who identify as LGBT.
While it is true that Lorie is a Christian, and her request not to design custom same-sex wedding websites is based on her religious beliefs, the legal issue before the Supreme Court is not about religion. Rather, the issue is whether CADA violates Lorie’s free-speech rights under the First Amendment. The First Amendment has long protected creative expression, including that of creative professionals who enter the marketplace.
The Tenth Circuit Court below acknowledged that Lorie’s wedding websites are “unique services” and “pure speech,” but under CADA she is “forced to create custom websites [she] otherwise would not.” The court found Lorie was “willing to work with all people regardless of sexual orientation” and was “generally willing to create graphics or websites for [LGBT] customers” but would not design websites celebrating same-sex marriages for anyone. The same is true for all her custom websites — Lorie decides whether to create a design based on the message requested, not the person making the request.
Nevertheless, Colorado falsely frames the case as merely requiring a business that opens its doors to the public to serve all customers and its law as protecting customers’ equal dignity and equal access to goods and services. CADA “simply requires that, once a business offers a product or service to the public, the business sells it to all without regard to a customer’s protected characteristic.” This assertion belies Colorado’s desire to use CADA to compel Lorie and others to say things they don’t believe.
To support its position, Colorado provides the following analogy: “The Act does not, as the Company claims, compel a Hindu calligrapher to ‘write flyers proclaiming, “Jesus is Lord.”’ It requires only that if the calligrapher chooses to write such a flyer, they sell it to Christian and Hindu customers alike.” The underlying premise of this analogy is that the custom wedding websites for same-sex and different-sex couples are the same product. They are not. As a group of website and graphic designers argued in their 303 Creative amicus brief filed in support of neither party, “A ‘custom’ product is materially different than a ‘mass-produced’ product.”
Aside from wedding websites having, at a minimum, different names, themes, colors, text, dates, and pictures, male-female and same-sex wedding websites are different because a wedding between those of each sex is inherently different from a wedding between those of the same sex, and the websites convey a different message and point of view about marriage.
This is particularly true for Lorie and others who share her beliefs about the nature of marriage. As Ryan Anderson, author of two books on marriage, has explained, “Only a man and a woman can unite as one-flesh as husband and wife, and that marital union can give rise to new life and connect that life with his or her mother and father. No same-sex union can do anything of the sort.”
Some readers will disagree and think there is no difference: “they’re both weddings” and “love is love.” But for Lorie and others, there is a big difference. Surely, we can all agree the government shouldn’t force Lorie to create custom websites contrary to her beliefs, just like the government shouldn’t force an LGBT designer to create custom websites critical of same-sex marriage.
Even though the word “marriage” is used for both, male-female marriage and a same-sex marriage are fundamentally different in kind. To say otherwise means that a woman marrying a man is interchangeable with a man marrying a man, but there are fundamental innate biological differences between males and females. Even those who support same-sex marriage can recognize this.
While a person’s sex is not always a relevant factor, biology creates important distinctions that make a difference in certain circumstances. For example, sex nondiscrimination laws allow men- and women-only spaces, such as bathrooms, locker rooms, and dorm rooms, to promote privacy and safety. Similarly, female-specific sports exist to give women athletic opportunities they otherwise would not have because of the physiological strength and size advantages that males have on average. And most relevant here, biological sex matters when it comes to intimate relationships, and yes, marriage.
To be sure, sex-specific distinctions have been eroded in recent years with the rise of gender-identity discrimination claims that allow biological males who identity as female access to women-only spaces and opportunities. If fact, these days, it seems like the best women are actually men.
Recognizing biological sex distinctions does not mean one must disapprove of same-sex marriages. It only requires acknowledging that because men and women have physiological differences, and these differences matter when it comes to intimate relationships, a same-sex marriage is not the same as a male-female marriage.
Regardless, the 303 Creative case is not really about same-sex marriage or religious beliefs about marriage; it is about the freedom of all Americans, regardless of religion or sexual orientation, to choose which messages to create and which products to sell. Because of the United States’ robust commitment to free speech (even disfavored or unpopular speech), legal scholars anticipate that the Supreme Court will rule in favor of Lorie and 303 Creative.
Hopefully a win in 303 Creative will prevent state and federal governments from using the force of law to justify coercing government-approved speech and silencing dissenters or ostracizing them from the public square — whether under a state law like CADA, the federal Respect for Marriage Act, or another law on a different topic altogether.
Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she works on EPPC’s HHS Accountability Project. An attorney, her legal and policy work focuses on religious liberty, health care rights of conscience, the right to life, nondiscrimination, and civil rights.