Op-Ed: Does the 1st Amendment protect a right to discriminate?

A U.S. flag flies above a rainbow flag, with a church steeple in the background
The case of 303 Creative LLC vs. Elenis is not directly about the free exercise of religion, but the issue will lurk behind any ruling.
(Charlie Riedel / Associated Press)

On Monday, the Supreme Court will hear oral arguments in a case that threatens to open the door widely to businesses being allowed to violate anti-discrimination laws. If the court rules that the 1st Amendment protects the right of business owners to discriminate — based on claims of freedom of speech or free exercise of religion — civil rights laws banning discrimination on the basis of race, sex, religion or sexual orientation will be severely weakened everywhere in this country.

The case before the court, 303 Creative LLC vs. Elenis, involves Lorie Smith, a graphic artist and a web designer. She wants to design websites for weddings, but she refuses to do so for same-sex weddings because of her religious beliefs.

Colorado law prohibits businesses that sell or offer services to the public from discriminating based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” The law also prohibits businesses from displaying a “notice” that “indicates that the full and equal enjoyment of the goods [or] services ... will be refused” based on a protected characteristic.


Smith filed a lawsuit in federal district court to have the law declared unconstitutional as applied to her and for an injunction to keep it from being enforced against her.

The district court and the U.S. Court of Appeals for the 10th Circuit rejected her claims and upheld Colorado’s anti-discrimination law. The appeals court stressed that the government has a compelling interest in preventing discrimination based on sexual orientation, in protecting the dignity interests of marginalized groups and in their ability to access the commercial marketplace.

The Supreme Court granted review, but interestingly only on the free speech issue and not on the question concerning free exercise of religion. The question before the court is: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”

Smith argues that the Colorado law compels her speech by requiring that she design websites for same-sex couples. But the state argues that it is regulating conduct — prohibiting discriminatory conduct — and only incidentally affecting Smith’s speech.

Although the free exercise of religion issue is not directly presented, it also underlies this case. It is the same question, indeed even the same Colorado law, that the court reviewed in the 2018 case, Masterpiece Cakeshop vs. Colorado Civil Rights Commission. In that case, a baker refused to design and bake cakes for same-sex weddings. In a majority opinion by Justice Anthony M. Kennedy, the court decided that case in favor of the baker on narrow grounds, without deciding the broader question of whether someone’s claims to free speech or free exercise of religion could be the basis for an exemption from anti-discrimination laws.

The willingness of the current court — with an even more conservative group of justices — to take this new case is concerning, and might suggest its interest in carving out exemptions from longstanding civil rights laws.


There will be grave consequences if the court rules in favor of Smith. There is no reason why such new 1st Amendment exemptions would be limited to sexual orientation. Those who want to discriminate against others based on race, sex or religion could simply raise a 1st Amendment defense. And this would seemingly extend to laws prohibiting discrimination in all contexts, such as in employment and housing.

For example, an employer with religious objections to employing gay, lesbian or transgender individuals could claim an exemption from state and federal laws prohibiting employment discrimination. Similarly, an employer who, based on religious beliefs, thinks that men and women should not be in the same workplace, could refuse to hire women (or men). A landlord with religious objections to interracial marriage could refuse to rent apartments to interracial couples.

The court has been explicit that all that is required is that the individual have a sincerely held religious belief; it does not matter whether it is a belief held by an organized religion. In a 1981 case, the court ruled that a person of the Jehovah’s Witness faith could claim a religious basis for quitting a job even when the requirements of that faith did not support his views.

The appeals court properly ruled that the Colorado law was constitutional because there was no other way to achieve the government’s goal, even if the law impinged on 1st Amendment rights. This analysis complies with long settled constitutional doctrines. People should not be able to use their religion as a basis for inflicting injuries on others.

There is always a tension between liberty and equality. Any law that prohibits discrimination limits the freedom to discriminate.

For decades, the Supreme Court has been clear that stopping discrimination is more important than protecting the freedom to discriminate. The court should reaffirm this principle in this case. But I worry that the conservative justices will use this case to undermine countless anti-discrimination laws.


Erwin Chemerinsky is a contributing writer to Opinion and dean of the UC Berkeley School of Law. His latest book is “Worse Than Nothing: The Dangerous Fallacy of Originalism.”