The US Supreme Court on June 30 sided with a website designer who claimed the First Amendment shielded her from liability under state civil rights laws for refusing to create wedding websites for same-sex couples.
In 303 Creative LLC v. Elenis, the Supreme Court declared that a state impermissibly compels speech when it forbids certain types of public accommodation from refusing to do business with persons on account of their membership in a protected class. The ruling turned on the Court’s view that the designer’s services—providing customized designs to each client, tailored to the client’s specific wedding, and incorporating the designer’s original artwork—were “expressive speech” protected by the First Amendment.
Lorie Smith created a business, 303 Creative LLC, of which she is the sole member. Smith claimed she intended to specialize in designing websites for weddings and wanted to advertise that she would refuse to design websites for same-sex weddings.
Before doing so, Smith preemptively sued the Colorado Civil Rights Commission in federal district court to enjoin it from enforcing provisions of the Colorado Anti-Discrimination Act (CADA) that preclude businesses from denying “the full and equal enjoyment” of services they offer to the general public to any person based on, among other protected characteristics, sexual orientation.
Smith never violated CADA, and no enforcement action had been taken against her. However, Smith argued that “she faces a credible threat that Colorado will seek to use CADA to compel her to create websites celebrating marriages she does not endorse.” The State of Colorado did not dispute this, and instead stipulated to additional facts to expedite the case. The district court and the US Court of Appeals for the Tenth Circuit ruled against Smith’s challenge.
In an opinion authored by Justice Neil Gorsuch, the Supreme Court determined that Smith’s website design services constituted “pure speech” for First Amendment purposes. The Court noted that this was a “conclusion that flows directly from the parties’ stipulations.” Specifically, the parties had stipulated that every website Smith created was a “customized” creation incorporating “original artwork.”
The Court went on to conclude that if Colorado compelled Smith to create a website she personally did not wish to create, Colorado would be compelling her to speak a “message” with which she disagreed. This conclusion was based on the parties’ stipulations that all of Smith’s website designs would be “expressive,” intended to “celebrat[e] and promot[e]” a particular marriage, and attributable to Smith and her business in addition to the client.
The Court further held that the First Amendment precludes the government from compelling a person or business to express a particular message against their wishes. Thus, the Court concluded, CADA could not constitutionally compel Smith to provide website design services to couples celebrating same-sex weddings.
The Court declined to consider Colorado’s alternative argument that its anti-discrimination law could be constitutionally applied if Smith were compelled to “repurpose” already-existing website designs for customers celebrating same-sex marriages, rather than being compelled to create something new. That argument was not squarely presented because the state had already stipulated the case concerned the constitutionality of CADA as applied to “customized and tailored” designs, rather than preexisting or generic designs.
The Court emphasized that its decision was based on the fact that Smith’s contemplated services were expressive speech and that the Court was not creating an exception to public accommodation laws for businesses that wish to discriminate based on a person’s “status” as opposed to message: ”[O]ur case is nothing like a typical application of a public accommodations law requiring an ordinary, non-expressive business to serve all customers or consider all applicants. Our decision today does not concern—much less endorse—anything like [a] ‘straight couples only’ notice[].”
The Court recognized that “approximately half the States have laws like Colorado’s that expressly prohibit discrimination on the basis of sexual orientation” and stressed that nothing in its decision limited the application of such nondiscrimination laws to the “innumerable goods and services that no one could argue implicate the First Amendment.”
However, in her dissent, Justice Sonia Sotomayor argued that the Court’s distinction between “message”-based discrimination and “status”-based discrimination could be of limited significance, akin to “the Heart of Atlanta Motel [arguing] that Black people may still rent rooms for their white friends.”
The Supreme Court’s decision in 303 Creative LLC only applies to persons and entities that are engaged in “expressive speech,” which the Court itself contended should limit its application and render it inapplicable to “innumerable” types of business. However, the fact that the Court did not establish clear standards for when (1) the sale of a customized good or service rises to the level of self-expression, and (2) a business is personally endorsing a “message” by providing its goods or services to a member of a protected class, means there is uncertainty as to how widely or narrowly future courts will apply the decision.
Furthermore, the First Amendment only protects against compelled speech by the government and is generally inapplicable to private actors. Accordingly, the Supreme Court’s decision does not preclude a private company from compelling its employees to express “messages” with which they do not necessarily agree.
For example, a website design company (i.e., a private, non-governmental entity) could still compel its own employees to design websites celebrating same-sex marriages, regardless of their personal views.
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