161
Same-Sex Family Recognition and Anti-
Discrimination Law: A Free Speech
Battleground
ARTHUR S. LEONARD*
Introduction
In 303 Creative LLC v. Elenis,1 the Supreme Court is considering
for a third time since its 2015 marriage equality decision, Obergefell v.
Hodges,2 whether state or local jurisdictions can prohibit private agencies
or businesses from refusing to provide services to same-sex couples who
are married or intend to marry.3 In this case, the Court will consider free
speech claims asserted by 303 Creative LLC and its owner, Lorie Smith,
a Colorado website designer who does not want to design and execute
websites for same-sex couples planning to marry.4
In the rst such case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights
Commission,5 the Court evaded the substantive issue by deciding the case
on narrower grounds. A baker who styled himself a “cake artist” claimed
both religious free exercise and free speech bases for declining to produce
a custom-designed wedding cake for a same-sex couple.
6
The Colorado
Civil Rights Commission and the state’s court of appeals rejected his First
1. 6 F.4th 1160 (10th Cir. 2022), cert. granted in part, 142 S. Ct. 1106 (2022) (No. 21-476).
2. 576 U.S. 644 (2015).
3. 303 Creative LLC v. Elenis, 142 S. Ct. 1106 (2022) (No. 21-476).
4. 303 Creative, 6 F.4th at 1169–70.
5. 138 S. Ct. 1719 (2018).
6. Brief for Petitioners at 5, 14–16, Masterpiece Cakeshop, 138 S. Ct. 1719 (2018) (No. 16-111).
* Arthur S. Leonard is the Robert F. Wagner Professor of Labor and Employment Law,
Emeritus, at New York Law School, and editor-in-chief of LGBT Law Notes, a monthly newsletter
published by the LGBT Law Association Foundation of Greater New York.
Published in Family Law Quarterly, Volume 56, Numbers 2 & 3, 2022–2023. © 2023 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
