The Supreme Court’s 2022–23 term

Part Two: Religion and speech versus equality.


Jack Phillips and Lorie Smith, both of Colorado, have several things in common. They operate creative businesses. They declare that they are very devout Christians. They have had their cases taken to the Supreme Court, claiming a religious exemption to serving same-sex couples who wish to marry.

Phillips makes one-of-a-kind cakes for his customers in his Masterpiece Bakeshop in Lakewood, Colo. He says he serves everyone who comes in the door, no matter their race, sex, or sexual orientation. When one of his longtime gay customers asked him to make a wedding cake, however, he declined. He said it would express an objectionable message conflicting with his religious faith.

In 2018, the Supreme Court ruled that the Colorado Civil Rights Commission had badly mistreated him. Writing for a seven-to-two majority in Masterpiece Bakeshop v. Colorado Civil Rights Commission, Justice Anthony Kennedy wrote that the commission expressed “clear and impermissible hostility toward his sincere religious beliefs.” Because he did not receive “neutral treatment,” the court ruled in his favor.

Smith operates a web design business in Littleton, Colo. She states on her website that “as a Christian who believes that God gave me the creative gifts that are expressed through this business, I have always strived to honor Him in how I operate it.” Like Phillips, she said she would work with anyone of any race, sex, or sexual orientation. When she decided to expand her business to include wedding websites, she declared that she would not do so for same-sex couples. She would be happy to work with them on any other project, but not marriages.

In June, the court decided by a six-to-three margin that she was exempt from designing wedding websites for same-sex couples. But in this instance, the court acknowledged but ignored her religious beliefs. Instead, writing for the court in 303 Creative v. Elenis, Justice Neil Gorsuch asserted that the First Amendment’s guarantee of free speech afforded her the right to refuse to design a same-sex wedding website.

If there are similarities between Phillips and Smith, there are also deep differences. Phillips refused to make a wedding cake for two people he knew well: Charlie Craig and David Mullins. They were longtime customers he had served before, and he knew they were gay.

Smith’s argument was wholly hypothetical. She was only considering adding wedding sites to her company’s products. No gay person had ever asked her to design a wedding website before she filed a complaint with the Colorado Civil Rights Commission. In fact, she made up a story about a couple named Stewart and Mike who wanted a web page advertising their upcoming marriage.

There was no such couple.

When a reporter called the telephone number in Smith’s lawsuit, he got hold of Stewart, and asked him about this. Stewart said he never contacted Smith. He said he was married (to a woman) for some 15 years, and was a father. He said he owned a web design company, and so why would he want someone else to make him a webpage?

Two things are at stake here.

First, according to the Constitution, the Supreme Court must deal only with “cases and controversies.” Given that the case was basically speculative, neither a case nor a controversy was at stake. The justices should have dismissed this case outright.

That they did not demonstrates the second important issue. The 14th Amendment declares that no state can “deny to any person within its jurisdiction the equal protection of the laws.” On this basis, Congress passed the Civil Rights Act of 1964, which “outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin.” 

Note “sex.” But does this apply to same-sex couples? Well, yes. Three years ago, in an opinion, again by Gorsuch, the court declared that it did. As Gorsuch wrote for a very different six-majority vote in Bostock v. Clayton County, Georgia, at least in a matter involving the workplace. Gerald Bostock had been fired just for being gay.

But now, Gorsuch joined the new majority in Lorie Smith’s case because, as he sees it, the First Amendment trumps equal protection. A fundamental question left unanswered is this: Whose message is being promoted when a website is created? The MV Times, for example, has a webpage, but its editors decide what content to present, what messages to disseminate. The designer is a conduit for the Times.

Even if the court ignored Smith’s plea that her religious devotion inspired her lawsuit, we cannot overlook the fact that in both cases, Jack Phillips the cakemaker and Lorie Smith the web designer, religious expression, for six conservative members of this court, wins over equal treatment.


This series is focusing on the 2022–23 Supreme Court term, which ended in June. Last week, Fruchtman reviewed the court’s decision on affirmative action. Next is student debt forgiveness,

Jack Fruchtman, who lives in Aquinnah, is preparing a fourth edition of his “Supreme Court and Constitutional Law.”