Does a Colorado designer’s belief that marriage is between one man and one woman merit an exemption to state law barring discrimination against LGBTQ+ people? On June 30, 2023, the Supreme Court decided 6-3 that the answer is yes: Requiring a conservative Christian business owner to create wedding websites for gay couples would violate the free speech clause of the First Amendment.
Creating a website constitutes an “expressive activity” protected by the First Amendment, Justice Neil Gorsuch wrote in the majority opinion, and Colorado’s anti-discrimination law would “compel an individual to create speech she does not believe.” Thus, designer Lorie Smith has the right to follow “her conscience about a matter of major significance” and refuse her services for same-sex weddings.
303 Creative v. Elenis is the latest of a trio of Supreme Court cases where conservative Christian plaintiffs have argued that they should have the constitutionally protected right to refuse service to LGBTQ+ people. In 2018, it was a Colorado baker refusing to bake a cake for a gay wedding. In 2021, it was a Catholic adoption agency arguing it should not be forced to place foster children with gay couples and thus be exempt from Philadelphia’s nondiscrimination policy.
These cases are no doubt important, signaling a broader trend on the current court, which has frequently ruled in favor of Christian plaintiffs on high-profile cases, particularly when it comes to cases that also involve gender and sexuality – although the Colorado baker’s win was a narrow one that avoided broader questions about civil rights, free speech and free religious exercise.
The big-picture view, however, is more complicated.
As sociologists of religion and sexuality, we have analyzed every federal court case between 1990 to 2020 that involves religious beliefs and LGBTQ+ people’s rights – a total of 62 cases. From this analysis, we know that the ruling in 303 Creative LLC v. Elenis runs counter to legal patterns of the past 30 years.
The latest Supreme Court rulings make it seem as if cases that deal with plaintiffs’ faith are usually successful in federal courts. More broadly, however, the opposite is true. Throughout U.S. history, litigants have drawn from ideas about religious liberty to attempt to justify violating the law, whether related to taxes, child labor, desegregation or dress codes. Most of the time they lose, and cases related to LGBTQ rights are no exception.
Three types of claims
Cases that involve religious freedom can take many forms. We focused our analysis on three types: those based on the free exercise clause of the First Amendment; those about free speech, as in 303 Creative, that are also based on the First Amendment; and religion claims citing Title VII of the Civil Rights Act, which prohibits employment discrimination.
We found that in only 21 of the 62 cases did a federal court side side with the religious litigant. What’s more, courts ruled in favor of the litigants’ specific religion-based legal claim – as opposed to some other element of their argument – in only three cases.
In our analysis, cases focused on wedding-related services, like 303 Creative, were the most likely to have justices side with the party bringing forth a religion-based claim, or to remand the case for further proceedings. In cases related to employment, housing, incarceration, education or physical and mental health care, on the other hand, federal courts were unlikely to side with religion-based claims.
The relative success of wedding-related cases points to a broader trend we observed. Over time, fewer cases dealt with plaintiffs’ opposition to LGBTQ+ identity and more on LGBTQ+ relationships, specifically same-sex marriage.
Take Ward v. Polite, a 2012 case where a graduate student in a master’s counseling program requested “that she be allowed to refer gay and lesbian clients seeking relationship advice to another counselor,” even though she, according to case documents, “had no problem counseling gay and lesbian clients.” The university believed that Ward’s refusal to counsel gay and lesbian clients in relationships violated its code of ethics and expelled her from the program.
She sued the university, claiming it had violated her right to freely exercise her religion. The 6th U.S. Circuit Court of Appeals criticized the university for not having an exception clause to its nondiscrimination policy, which students like Ward could have used to request to transfer a client, and remanded the case for additional proceedings.
Not always the ‘usual story’
Our findings also revealed that federal court cases about faith and sexual orientation often affirm a stereotype that gender scholar Janet Jakobsen calls the “usual story” about religion and LGBTQ+ rights: that the two are in tension with one another.
In other words, even when the court doesn’t side with litigants whose cases are related to their faith, most lawsuits about these topics give the impression that religious beliefs endorse heterosexuality over any alternative. The majority of cases brought over the past 30 years – 50 of the 62 in our sample – were indeed brought by people who say their religious beliefs oppose LGBT identities or relationships.
Still, there are examples of plaintiffs who use religion-based claims to advance LGBTQ+ rights.
For instance, attorney Robin Joy Shahar sued the attorney general of Georgia, Michael Bowers, after he withdrew his job offer to her upon finding out that she married her partner, another woman, in a religious ceremony. The case, Shahar v. Bowers, was eventually decided in 1997, when sodomy laws were still on the books, and long before U.S. states legally recognized same-sex marriages – a fact the court emphasized by putting quotation marks around every reference to Shahar’s marriage and wedding.
Shahar, who had held a Jewish wedding ceremony at her synagogue, argued that the attorney general had violated her right to freely exercise her religion, among other rights. But the U.S. Court of Appeals for the 11th Circuit sided with Bowers, reasoning that the interests of the government – in this case the attorney general’s office – outweighed Shahar’s individual rights.
Other litigants have integrated their religious beliefs or identity into federal court arguments, seeking to protect LGBTQ+ people and their rights. In our analysis, the court ruled against each of their religion-based claims.
The road ahead
Today, hours after the court’s decision was announced, it is too early to predict the consequences of the ruling. It’s worth noting, however, that the Supreme Court declined to consider Smith’s claims that Colorado’s law violated the free exercise clause of the First Amendment. In other words, they were willing to consider – and ultimately decided – that the law violated her right to create, or not create, content based on her religious beliefs. Yet they were not willing to consider whether the law impeded her ability to freely practice her faith.
In this way, the court did not overturn precedent related to other forms of religious freedom.
Still, as Justice Sonia Sotomayor noted in her dissent – joined by Justice Elena Kagan and Justice Ketanji Brown Jackson – this ruling leaves open the possibility that other religious business owners will claim their services are “expressive” acts of speech and thus refuse to serve LGBTQ+ people.
“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,” Sotomayor wrote. “The law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment.”
Kelsy Burke receives funding from the National Science Foundation.
Emily Kazyak receives funding from the National Science Foundation.