Ben Lowenthal: Supreme Court Ruling In Same-Sex Wedding Case Sets A Dangerous Precedent - Honolulu Civil Beat

About the Author

Ben Lowenthal

Ben Lowenthal grew up on Maui. He earned his undergraduate degree studying journalism at San Francisco State University and his law degree at the University of Kansas. He is a deputy public defender on Maui practicing criminal defense in trial and appellate courts. He also runs “Hawaii Legal News,” a blog covering Hawaii appellate courts. The author's opinions are his own and don't necessarily reflect those of Civil Beat. You can reach him at

Using the First Amendment as an excuse to discriminate is nothing new.

A wedding these days can call for a variety of businesses and vendors to create the perfect day.

Photographers, catering companies, musicians, bakers and florists are just some of the artisans usually hired for an event. It can cost a fortune. Planning the event may take a year or several months. On top of that, Hawaii is often marketed as a desired destination combining tourism with the wedding industrial complex.

It’s tragic and ironic that the Supreme Court of the United States used this industry — an industry that is supposed to celebrate love and commitment — to breathe new life into an old constitutional claim to discriminate. 

Denver-based web designer Lorie Smith said she was called by God “to explain His true story about marriage.” That meant creating wedding websites for couples. And while her lawyers would later stipulate that Smith was “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender,” she would not create something contradicting her “biblical truth,” which, according to her, limits marriage to a union between a man and a woman.

If asked — and it’s really unclear if anyone did ask — to create a wedding website for a same-sex couple, she wouldn’t do it. Smith was concerned that holding her business open to the public while simultaneously saying she would refuse services of certain things for certain people would run afoul of the law.

Colorado is among the 45 states that have public accommodations law preventing businesses from discriminating against specific and distinct members of the public. Half of those states — including Hawaii — prohibit businesses from refusing service based on “sexual orientation.”

The Oahu Wedding Association sponsored an alliance and inclusivity training session two days before the U.S. Supreme Court issued its opinion in the First Amendment case. (Stewart Yerton/Civil Beat/2022)

Represented by Alliance Defending Freedom, a nonprofit legal organization “committed to protecting religious freedom, free speech, the sanctity of life, parental rights, and God’s design for marriage and family,” Smith’s company sued the director of Colorado’s civil rights enforcement division. Smith claimed the public accommodations law forces her to assist a same-sex couple into making a website. And that violated the First Amendment because it compelled her to express something she did not want to express.

Her case went up to the United States Supreme Court, and on the last day of its term this year, it handed Smith a win.

Writing for the Court, Justice Neil Gorsuch characterized the issue as a contest between public accommodations laws and the constitutional right to free speech in the First Amendment, in which the latter must prevail. He wrote that to rule otherwise would allow the government to “deny speakers the right to choose the content of their own messages” and would force Smith to send a message that may align with the state, but “defy her conscience about a matter of major significance.”

The right to “think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong,” he wrote. And so the public accommodations law must yield.

Justice Sonia Sotomayor was joined by Justices Elena Kagan and Ketanji Brown Jackson in her dissent. She pointed out that using the First Amendment to discriminate is nothing new: “A business claims that it would like to sell wedding websites to the general public, yet deny those same websites to gay and lesbian couples. This Court grants the business a broad exemption from state law and allows the business to post a notice that says: Wedding websites will be refused to gays and lesbians.”

Sotomayor wrote that the First Amendment doesn’t grant special privileges. If Smith wants to make her services available to the public, she must make those services available for all. If her religious beliefs don’t allow her to do that, then she doesn’t have to serve the public. There was no government boogeyman telling her what she can and cannot say.

No one really knows what’s going to happen next. While most wedding vendors are inclusive — the Oahu Wedding Association sponsored an “allyship and inclusivity” training session two days before the Court issued its opinion — and will gladly cater to same-sex couples, what’s to stop a business from announcing it will no longer serve people from the mainland?

Can a business now say it will not create websites, bake cakes, arrange flowers or take pictures for mixed-race couples or for people of color? Can it defy the public accommodations law and announce it will only serve Christians and say that Jews, Buddhists or any other faith is not welcome?

Why stop at weddings?

Couples enjoy their wedding photographs along Ala Moana Beach park, Magic Island side.  15 july 2015. photograph Cory Lum/Civil Beat
A Denver-based web designer recently had a victory in the Supreme Court, allowing her to refuse to design websites for same-sex weddings, saying being forced to do so would violate her First Amendment rights. (Cory Lum/Civil Beat/2015)

Businesses claiming a constitutional right to discriminate isn’t anything new.

Maurice Bessinger was an ardent segregationist and proud owner of pit-style barbeque drive-ins in South Carolina. In the 1960s, the National Association for the Advancement of Colored People brought a class action against his business, Piggie Park Enterprises, and the company did not deny its extremely limited service to people of color. His lawyers argued that Bessinger’s Christian faith compelled him to treat Black people differently and that the Civil Rights Act of 1964 “contravenes the will of God.” 

Unlike Smith, Piggie Park lost. And when the Supreme Court ordered the company to pay for the NAACP’s attorney’s fees, it noted Bessinger’s claims were “patently frivolous.”

Years later, at Piggie Park headquarters adorned with aging pictures of Confederate generals and stacks of literature expounding a “biblical view of slavery,” Bessinger told the press that his old case was about his rights, not the other way around.

“I went to the Supreme Court to defend a freedom,” he said, “a freedom to choose my customers the way I wanted to choose them.”

He died in 2014 — nine years before the Supreme Court started to see it his way.

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About the Author

Ben Lowenthal

Ben Lowenthal grew up on Maui. He earned his undergraduate degree studying journalism at San Francisco State University and his law degree at the University of Kansas. He is a deputy public defender on Maui practicing criminal defense in trial and appellate courts. He also runs “Hawaii Legal News,” a blog covering Hawaii appellate courts. The author's opinions are his own and don't necessarily reflect those of Civil Beat. You can reach him at

Latest Comments (0)

I had a question about this case. If I am the owner of a domain name and the associated website and I want to say something either commercial or personal on it, then isn't it my speech? How does it become the speech of the website designer? I think the reason that this issue didn't get fleshed out was because there was no real website to look at and we don't know what the specifics of the dispute. This case was something like what lawyers call declaratory relief--a ruling about the law as it might affect a future situation. That is not to say this is necessarily a wrong ruling or something the Court can't do; it is to help "explain" the limited facts the Court was working with and some of the controversy which has arisen from it. Facts matter to legal conclusions.

Fallback25 · 2 months ago

This was a win-win decision. It protects everyones free association. If a gay baker doesn’t want to to write something on a cake for a heterosexual couple then so be it. Whatever

StateWorker · 2 months ago

Seems the facts here matter. An open shop that won't serve gay people, no can. A hotel that won't let gay people stay there, or restaurant won't seat gay people, no can. A website that says it won't serve gay clients, no can. Cake shop has a cake in the window for sale, and won't sell it to gay people, no can. But you order up a custom cake or a website with a message the maker doesn't agree with, no can force the business to create the message. That's the issue here. Should a bigot be able force a website maker who was gay to create a hateful anti-gay website? Would the race of the bigot matter?

jizzyray · 2 months ago

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