The Supreme Court ruled Friday, in a 6-3 decision, that a Colorado state law compelling a website designer to “create expressive designs speaking messages with which the designer disagrees” stands in violation of the First Amendment.
In this case, 303 Creative LLC v. Elenis, the owner and founder of the graphic design firm 303 Creative LLC, Lorie Smith of Colorado, wanted to expand her business to include the creation of wedding websites. Given that Smith is opposed to same-sex marriage on religious grounds, however, she did not want to design sites for same-sex weddings.
As it stands, Colorado Anti-Discrimination Act prohibits “public accommodations,” or businesses that are open to the public, from denying “the full and equal enjoyment” of its goods and services to a customer based on one of many legally protected traits, including “sexual orientation.”
Penalties for violating this law include a $500 fine, a cease-and-desist order, or a requirement to take “affirmative actions,” such as “mandatory educational programs” and the “submission of on-going compliance reports to state official.”
Before finalizing her planned expansion, Smith challenged this aspect of the Colorado Anti-Discrimination Act in court, concerned that if she began offering wedding website design, the state would “force her to express views with which she disagrees.”
In the original lawsuit, Smith “sought an injunction to prevent the State from forcing her to create wedding websites celebrating marriages that defy her beliefs.”
Both Smith and the state of Colorado stipulated in the initial suit that she is “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender,” and she “will gladly create custom graphics and websites” for clients of any sexual orientation.
They also stipulated that “just like the other services she provides, the wedding websites Ms. Smith plans to create ‘will be expressive in nature'” and “‘express Ms. Smith’s and 303 Creative’s message celebrating and promoting’ her view of marriage.”
According the Justice Neil Gorsuch, who authored the Supreme Court’s majority opinion, Smith “worries that, if she enters the wedding website business, the State will force her to convey messages inconsistent with her belief that marriage should be reserved to unions between one man and one woman.”
Under current Colorado law, Justice Gorsuch argued, “if [Smith] wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs, sanctions that may include compulsory participation in “remedial . . . training,” filing periodic compliance reports as officials deem necessary, and paying monetary fines.”
“Under our precedents, that ‘is enough,’ more than enough, to represent an impermissible abridgment of the First Amendment’s right to speak freely.” Justice Gorsuch said.
Furthermore, the Court argued 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 First Amendment’s protections belong to all, not just to speakers whose motives the government finds worthy,” Justice Gorsuch wrote.
In conclusion, Justice Gorsuch stated:
As this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong. Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider ‘unattractive,’ ‘misguided, or even hurtful.’ But tolerance, not coercion, is our Nation’s answer. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.
In the dissenting opinion, authored by Justice Sonia Sotomayor, it was written that “for the first time in its history” the Court “grants a business open to the public a constitutional right to refuse to serve members of a protected class.”
The dissent further stated that “around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities.”
Justice Sotomayor argued that the majority opinion is “profoundly wrong” in its decision, as “the law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment.”
The dissenting opinion focused heavily on the concept of a “public accommodation,” as well as the history of anti-discrimination provisions in the United States. Justice Sotomayor also took issue with the fact that the decision is based on a “pre-enforcement challenge” to Colorado’s anti-discrimination statute.
Whereas the majority opinion argued that the kind of web design Smith intends to pursue ought to be understood as “expressive,” as it was stipulated to be by both parties in the lower courts, the dissenting opinion asserts that Smith is seeking an exemption to the Colorado Anti-Discrimination Act for her “conduct.”
“All the company has to do is offer its services without regard to customers’ protected characteristics. Any effect on the company’s speech is therefore ‘incidental’ to the State’s content-neutral regulation of conduct…All the company may not do is offer wedding websites to the public yet refuse those same websites to gay and lesbian couples,” Justice Sotomayor wrote.
“The Court reaches the wrong answer in this case because it asks the wrong questions,” the dissent argues:
The question is not whether the company’s products include ‘elements of speech.’ (They do.) The question is not even whether [the Colorado Anti-Discrimination Act] would require the company to create and sell speech, notwithstanding the owner’s sincere objection to doing so, if the company chooses to offer ‘such speech’ to the public. (It would.) These questions do not resolve the First Amendment inquiry…Instead, the proper focus is on the character of state action and its relationship to expression. Because Colorado seeks to apply [the Colorado Anti-Discrimination Act] only to the refusal to provide same-sex couples the full and equal enjoyment of the company’s publicly available services, so that the company’s speech ‘is only ‘compelled’ if, and to the extent,’ the company chooses to offer ‘such speech’ to the public, any burden on speech is ‘plainly incidental’ to a content-neutral regulation of conduct.
Justice Sotomayor provided an illustration to explain her reasoning. “Petitioners here concede that if a same-sex couple came across an opposite-sex wedding website created by the company and requested an identical website, with only the names and date of the wedding changed, petitioners would refuse. That is status-based discrimination, plain and simple,” she said.
“Oblivious to this fact, the majority insists that petitioners discriminate based on message, not status. The company, says the majority, will not sell same-sex wedding websites to anyone. It will sell only opposite-sex wedding websites; that is its service. Petitioners, however, ‘cannot define their service as ‘opposite-sex wedding [web-sites]’ any more than a hotel can recast its services as ‘whites-only lodgings,” Justice Sotomayor continued.
“I fear that the symbolic damage of the Court’s opinion is done,” Sotomayor wrote in the conclusion of the dissent. “Every business owner in America has a choice whether to live out the values in the Constitution. Make no mistake: Invidious discrimination is not one of them.”
Although today’s decision will undoubtedly take on a critical place within First Amendment case law, this is not the first time that the Supreme Court has heard a free speech case related to the Colorado Anti-Discrimination Act.
In 2018, the Court heard the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission wherein the owner of Masterpiece Cakeshop declined to create a wedding cake for a same-sex wedding on the grounds that it would violate his religious beliefs.
The men for whom the owner refused to create a wedding cake sued Masterpiece Cakeshop for discrimination under the Colorado Anti-Discrimination Act, the same law that was being considered in 303 Creative.
In Masterpiece Cakeshop, the Supreme Court ruled 7-2 that it would be a violation of the First Amendment to compel the owner of Masterpiece Cakeshop to create a cake expressing a message contrary to his religious beliefs, much like the Court concluded in their decision this morning.
For today’s decision in 303 Creative, Justice Neil Gorsuch authored the majority opinion, and was joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett.
Justice Sonia Sotomayor filed a dissenting opinion and was joined by Justices Elena Kagan and Ketanji Brown Jackson.