The Supreme Court today issued a landmark decision on the relationship between the First Amendment’s Free Speech Clause, public-accommodation laws, and LGBT rights: 303 Creative LLC v. Elenis. The parties called on the Court to decide “[w]hether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”
The Court held 6–3 that “[t]he First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.”
Justice Gorsuch wrote the opinion of the Court, which the Chief Justice and Justices Thomas, Alito, Kavanaugh, and Barrett joined. Justice Sotomayor wrote a dissenting opinion, which Justices Kagan and Jackson joined.
Petitioners Lorie Smith and her company, 303 Creative LLC, challenged the application of the Colorado Anti-Discrimination Act (CADA) against Smith, whose religious beliefs prohibit her from crafting some custom messages. Smith is a website designer who wants to expand her company’s offerings to include custom wedding websites.
While Smith and her company will serve any customer regardless of sexual orientation, she could not, consistent with her Christian faith, create a custom wedding website celebrating a same-sex wedding. Smith also wishes to post a notice that she will not create these custom websites for same-sex weddings.
Smith has refrained from providing custom websites for any weddings or posting the notice for fear of enforcement action under CADA.
Respondents include Director of the Colorado Civil Rights Division Aubrey Elenis. The Colorado Civil Rights Division is required to “receive, investigate, and make determinations on charges alleging unfair or discriminatory practices” under CADA, which bars discrimination in public accommodations based on sexual orientation.
The opinion of the Court summarized its precedents on freedom of expression, deriving several principles applicable in 303 Creative:
[T]he First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply “misguided” and likely to cause “anguish” or “incalculable grief.” Generally, too, the government may not compel a person to speak its own preferred messages. (citations omitted)
Applying these principles, the Court found unconstitutional a law that would compel Smith’s speech. While the Court recognized the importance of public-accommodations laws for “eliminating discrimination,” it “recognized that no public accommodations law is immune from the demands of the Constitution. In particular, this Court has held, public accommodations statutes can sweep too broadly when deployed to compel speech.”
The Court rejected Colorado’s argument that the for-profit nature of Smith’s speech deprived her speech of much First Amendment protection: “[M]any of the world’s great works of literature and art were created with an expectation of compensation. And speakers do not shed their First Amendment protections by employing the corporate form to disseminate their speech.”
The Court heard a similar challenge to CADA in 2018: Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. In Masterpiece, a Christian baker who designed custom wedding cakes refused to design wedding cakes for same-sex weddings.
The Court, however, did not rule on the First Amendment free speech issue as it did in 303 Creative, instead finding 7–2 that open hostility toward the baker’s religion during state administrative proceedings tainted those proceedings.
Legal Insurrection has extensively covered Masterpiece and its fallout. Legal Insurrection last reported that the baker lost his appeal challenging CADA as applied to his refusal to design a gender transition celebration cake.
MORE TO FOLLOW
The Court surveyed its precedent on compelled speech, public-accommodations laws, and ‘expressive association’
The Court cited West Virginia Bd. of Ed. v. Barnette, which invalidated a school’s policy requiring students “to salute the Nation’s flag and recite the Pledge of Allegiance.” Finding for the students, the Court in Barnette held “state authorities had ‘transcend[ed] constitutional limitations on their powers.'”
The Court then moved to a discussion of precedent governing the intersection of the First Amendment and public-accommodations laws.
The Court relied on its holding in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. That case involved a veteran-organized “St. Patrick’s Day parade in Boston [that] refused to include a group of gay, lesbian, and bisexual individuals in their event.” The excluded group challenged its exclusion, citing a Massachusetts’s public-accommodations law.
The Hurley Court, finding for the organizers, held “the parade was constitutionally protected speech and requiring the veterans to include voices they wished to exclude would impermissibly require them to ‘alter the expressive content of their parade.”
The Court rounded out its discussion of relevant First Amendment precedent with Boy Scouts of America v. Dale, which involved the Boy Scouts’ exclusion of a gay scoutmaster in violation of a New Jersey public-accommodations law.
The Dale Court found for the Boy Scouts even though their association with the scoutmaster “may not have implicated pure speech” because “the Boy Scouts ‘is an expressive association’ entitled to First Amendment protection.”
Smith’s wedding websites would be ‘pure speech’ and ‘her speech,’ which Colorado could not compel
Based on facts stipulated by Smith and Colorado, the Court found Smith’s services would be pure speech because “every website will be her ‘original, customized’ creation” and “communicate ideas—namely, to ‘celebrate and promote the couple’s wedding and unique love story’ and to ‘celebrat[e] and promot[e].'”
Because Smith would vet a “prospective project to determine whether it is one she is willing to endorse, ” the speech would also be her speech based on the stipulated facts. Colorado sought to compel this speech by forcing Smith to create websites with a message she found objectionable.
Applying Hurley, Dale, and Barnette, the Court found the compulsion of Smith’s speech unconstitutional, despite Colorado’s insistence the compulsion was necessary to protect gay and lesbian Coloradans:
Consider what a contrary approach would mean. Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected trait.
Dissent: the Court is allowing businesses to refuse to serve gay and lesbian people
The dissent opened with a line from the Court’s decision in Masterpiece Cakeshop stating that a religious objection to gay marriage would “not allow business owners . . . to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”
The dissent accused the majority of abandoning this principle in 303 Creative:
Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class. Specifically, the Court holds that the First Amendment exempts a website-design company from a state law that prohibits the company from denying wedding websites to same-sex couples if the company chooses to sell those websites to the public.
Gorsuch’s opinion pushes back on this, citing a stipulated fact: “[W]e do no such thing and Colorado itself has stipulated Ms. Smith will (as CADA requires) ‘work with all people regardless of . . . sexual orientation.'”
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