Dr Michael Connolly, Reader in Law, explores a fascinating case in the US Supreme Court, which could have implications in the UK.
In another event of the ‘clash of rights’ between freedoms of free speech and religion and freedom from discrimination, a Christian web designer refuses to build a site for same-sex weddings. The case, 303 Creative v Elenis, is being heard by the US Supreme Court (see 142 S.Ct. 1106, on appeal from 6 F.4th 1160 (10th Cir. 2021).
It may be recalled that the UK Supreme Court, in Lee v Ashers, found that a Christian bakery’s refusal to ice a cake with ‘Support Gay Marriage’ did not amount to (sexual orientation) discrimination, with a key distinction being that the refusal was about ‘the message and not the man’. Anyone would have been refused. The Court indicated that this was quite distinctive from the refusal to supply a cake for a same-sex wedding, as that would involve the sexual orientation of identifiable persons. The Court cited the US Supreme Court case of Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission (2018) 138 S Ct 1719 in support.
This case was in fact more complex than suggested, and this might explain why the Supreme Court is entertaining the issue again. For a discussion on this (and more) see (2021) 72 (1) NILQ 29.
The US Supreme Court has a 6-3 conservative majority, yet in recent times has made significant pro-gay rights decisions (on same-sex marriage, and federal discrimination law). It will be interesting to see whether the US Supreme Court makes the same distinction (between ‘the message and the man’), notably in the case of a webpage (a ‘message’) dedicated to a particular wedding (‘the men’). This could be analysed as a case comprising elements from both sides of the distinction. Unlike the UK Supreme Court, the US judiciary is likely to discuss in this context the web designer’s (and providers of services generally) freedoms of expression and religion.
The reasoning will be interesting and perhaps informative of future UK decisions, especially as the UK Supreme Court was content to cite in the US Supreme Court in Lee v Ashers. A decision in 303 Creative is not expected until next year.