Supreme Court Asked to Exempt Creative Businesses from Public Accommodations Laws

December 07, 2022

The US Supreme Court heard arguments on December 5, 2022, in 303 Creative LLC v. Elenis, No. 21-476, which asks whether a website design company has a constitutionally protected free speech right to refuse to design wedding websites for same-sex couples, notwithstanding state public accommodations laws to the contrary. A decision is expected sometime in 2023.

The plaintiff in 303 Creative LLC is a graphic design company specializing in websites for weddings. The company wished to put a disclaimer on its website stating that it would refuse service to same-sex couples. The company preemptively sued the Colorado Civil Rights Commission to enjoin it from enforcing provisions of the Colorado Anti-Discrimination Act (CADA) that prohibit both the publication of such a notice and the refusal to serve customers based on their sexual orientation.

CADA was previously the subject of Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. __, 138 S. Ct. 1719 (2018), which involved a bakery owner who refused to make a wedding cake for a same-sex couple. In that case, the Supreme Court reversed a finding in favor of the Colorado Civil Rights Commission based on the Commission’s specific conduct toward the bakery, without needing to address the underlying constitutionality of CADA.

Whether and How a Business Is ‘Speaking’ Through Its Services

During oral argument, several of the justices struggled with the question of whether a website designer is “speaking” when it creates a website for customers. Justice Kagan noted that many wedding websites are formulaic, and questioned whether following a standardized format with some input from the customer constitutes expressive speech. Similarly, Justice Sotomayor questioned whether the person speaking is the website designer or the customer, observing that the website designer isn’t inviting anyone to the wedding. Justice Gorsuch echoed the concern that there are some creative services where it is ambiguous whether the customer, the business, or both are engaged in speech.

Justice Jackson asked whether—if website designers are engaged in speech—the same logic would apply to other businesses that have a creative element. For example, Justice Jackson asked whether a family photographer who stages personalized, Christmas-themed photos has a constitutional right to hang a sign announcing that only white children will be photographed with Santa, and children of color will be referred elsewhere. Approaching the question from a different perspective, Justice Barrett asked whether a website design company could be compelled to design a website for an organization that exists to oppose same-sex marriage, or if refusing that business would be a rejection based on the “status” of the customer for purposes of public accommodations laws.

In an effort to distinguish the case at hand from other hypotheticals, Justices Thomas and Roberts highlighted types of businesses that obviously do not implicate free speech rights, with Justice Thomas referring to “a train business” or “riverboat business,” and Justice Roberts observing that the case did not concern “a seat on the bus or a room in the hotel.” Justice Alito also questioned whether the exercise of any selective criteria could potentially run afoul of public accommodations laws.

Justice Kavanaugh outlined a potentially narrow ruling for the Court. He observed that neither party seemed to dispute that it would be inappropriate to compel “an artist” to create artworks they didn’t agree with, and suggested the entire case could be resolved by deciding whether website designers are “artists.”

Potentially Far-Reaching Consequences

The overwhelming majority of states have enacted public accommodations laws, with more than two dozen specially forbidding the refusal of service based on sexual orientation. A ruling in favor of the plaintiff-petitioner in 303 Creative LLC would call into question the enforceability of those laws, especially considering the ambiguity around what services implicate a business’s speech rights, which was a recurrent topic at oral argument.

Moreover, although the facts in 303 Creative LLC concern discrimination against same-sex couples, the public accommodations law at issue also precludes discrimination on the basis of “race, creed, color, sex, [] marital status, national origin, or ancestry.” Other states have enacted public accommodations laws prohibiting discrimination against the elderly, veterans, and people who are pregnant. A ruling in favor of the plaintiff-petitioner could permit companies providing creative services to discriminate against customers on all these bases, notwithstanding state laws to the contrary.

A decision in 303 Creative LLC will be rendered sometime in 2023.


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