Employment Law Report
303 Creative LLC v. Elenis
By: Kelly Zimmerer, Wyatt Summer Associate
In a 6-3 opinion written by Justice Neil Gorsuch, the Supreme Court held in 303 Creative v. Elenis that Colorado cannot force a website designer to create wedding websites for same-sex couples. While the decision strengthens First Amendment protections for business owners with services involving speech or other expressive elements, it also marks “a sad day … in the lives of LGBT people.” 303 Creative v. Elenis, 600 U.S. ___, (slip op. at 35) (2023) (Sotomayor, J., dissenting).
Lorie Smith, the sole proprietor of 303 Creative, filed the suit to challenge Colorado’s Anti-Discrimination Act. Ms. Smith, who offers website and graphic design among other services through 303 Creative, wanted to expand her company offerings to include wedding websites. She worried, however, that Colorado would compel her under the Anti-Discrimination Act to create websites for the weddings of same-sex couples, which conflicts with her religious belief that a marriage is between one man and one woman. Ms. Smith, arguing this compulsion would violate her First Amendment rights to free speech and free exercise of religion, asked for an injunction to prevent Colorado from enforcing the Act.
Colorado’s Anti-Discrimination Act prohibits public-facing businesses from refusing service to or otherwise discriminating against individuals because of sexual orientation. Although twenty-four other states have similar laws, this isn’t the first time Colorado’s statute has been scrutinized by the Supreme Court. Just five years ago, in 2018, the Court decided Masterpiece Cakeshop v. Colorado. I’ll quickly recap that case before diving into 303 Creative because the two cases ask many of the same questions. One article has even called 303 Creative Masterpiece Cakeshop 2.0.
Masterpiece Cakeshop: A Precursor to 303 Creative
In 2012, Jack Phillips, the owner of Masterpiece Cakeshop, a bakery in a Denver, Colorado suburb, refused to create a wedding cake for Charlie Craig and Dave Mullins, a same-sex couple. Mr. Phillips, a Christian, believed marriage was the union of one man and one woman and felt that creating a same-sex wedding cake would be a personal endorsement of something contrary to his religious belief. His refusal predated Obergefell, so same-sex marriage was still unrecognized in Colorado, but Craig and Mullins had been legally married in a different state.
Craig and Mullins filed a complaint against Masterpiece Cakeshop, alleging discrimination in violation of Colorado’s Anti-Discrimination Act. After an investigation and a hearing, the Colorado Civil Rights Commission ruled that Mr. Phillips must create wedding cakes for same-sex couples to comply with the Act. Mr. Phillips appealed, arguing Colorado’s Act violated his First Amendment rights to free speech and free exercise of religion.
In 2018, three years after Obergefell, the Supreme Court upheld Colorado’s Anti-Discrimination Act, but ruled for Mr. Phillips. According to the Court, Colorado had applied the Act in a way that was hostile to religion, which violated Mr. Phillips’ right to freely exercise his religion. The decision heavily relies on statements by the commissioner at Mr. Phillips’ hearing before the Civil Rights Commission that were disparaging towards religion. Thus, just five years before 303 Creative, the Supreme Court restated the “general rule that [religious and philosophical] objections do not allow business owners … to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law,” but held that states must apply such a law in a way that does not disparage religion. Masterpiece Cakeshop v. Colorado, 138 S.Ct. 1719, 1727 (2018).
303 Creative: Masterpiece from a Different Angle
Although the facts in Masterpiece Cakeshop and 303 Creative are eerily similar, the Supreme Court changed how it approached the issue of whether a business owner can discriminate against potential customers based on the owner’s religious beliefs. Unlike Masterpiece Cakeshop, where the ruling hinges on hostility towards religion, the crux of 303 Creative is Ms. Smith’s First Amendment right to freedom of speech in the face of Colorado’s Anti-Discrimination Act.
Freedom of Speech
An individual’s freedom of speech is protected by the First Amendment to the Constitution. This protection applies not just to spoken words but to any form of communication or expressive activity, including billboards, art installations, license plates, and band names.
While an individual’s right to freedom of speech is robust, and has even been called a “fixed star in our constitutional constellation,” it is not absolute. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). Certain forms of speech, such as obscenity, true threats, and fighting words, are unprotected. Moreover, the First Amendment does not prevent restrictions on commerce or conduct that incidentally burden speech. The government can also directly regulate speech without violating the First Amendment if the restriction on speech is content-neutral, meaning it applies to all speech in a certain category without regard to the message, or if it meets “strict scrutiny.” To satisfy strict scrutiny, the restriction must serve a compelling government interest, such as protection of national security, and be narrowly tailored to achieve the compelling interest.
In 1943, the Supreme Court determined that the First Amendment also prohibits the government from compelling individuals to speak or otherwise express themselves in a certain way. Although it seems that the content-neutral and strict scrutiny tests would apply to compelled speech just as they do to restricted speech, there is not strong precedent for their application to regulations compelling speech.
There is precedent, however, for applying the protection from compelled speech to expressive activities that discriminate against LGBTQ+ individuals. For example, in 1995, the Supreme Court used the theory of compelled speech to protect the ability of a group of veterans organizing a St. Patrick’s Day parade in Boston to refuse to include a group of gay, lesbian, and bisexual Irish-Americans from the event. According to the Court, requiring the veterans to include the unwanted group would “alter the expressive conduct of their parade.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 572-73 (1995). In 2000, the Supreme Court allowed the Boy Scouts to exclude a gay man from membership under the First Amendment because the Boy Scouts “is an expressive association.” Boy Scouts of America v. Dale, 530 U.S. 640, 656 (2000).
The majority in 303 Creative views the case as one of compelled speech. According to Justice Gorsuch, Ms. Smith’s wedding website creations are “pure speech,” and therefore protected by the First Amendment. Through its Anti-Discrimination Act, however, Colorado is compelling Ms. Smith to speak a message she disagrees with, which violates the First Amendment prohibition on compelled speech. Accepting such a law would affect “countless other creative professionals,” forcing them “to choose between remaining silent, producing speech that violates their beliefs, or speaking their minds and incurring sanctions for doing so.” 303 Creative, (slip op. at 12). According to the majority, the First Amendment prohibits the government from presenting individuals such a choice.
Justice Sotomayor, in her dissent, argues that Colorado’s Anti-Discrimination Act is not subject to First Amendment regulation based on the theory of compelled speech because it is a neutral regulation of conduct that incidentally burdens speech. She compares the current case to a 2006 case, Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR), in which the Supreme Court was presented with a First Amendment challenge to the Solomon Amendment. The Solomon Amendment prohibits an institute of higher education receiving federal funds from denying a military recruiter “the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access.” Rumsfeld v. FAIR, 547 U.S. 47, 48 (2006). Law schools, which provide recruiting assistance through emails, notices, and fliers, claimed that the Solomon Amendment compelled them to speak contrary to their objection to the military’s Don’t Ask, Don’t Tell policy. The Court ruled that the creation of fliers, notices, and emails did not transform the Solomon Amendment into an act that compelled speech because any speech was incidental to the regulated conduct. According to Justice Sotomayor, the Anti-Discrimination Act, like the Solomon Amendment, regulates the equal provision of services, which is conduct, and only incidentally burdens speech. Moreover, to the extent speech is compelled, “the refusal to deal with or to serve a class of people is not an expressive interest protected by the First Amendment.” 303 Creative,(slip op. at 17) (Sotomayor, J., dissenting).
Free Exercise of Religion
Like Mr. Phillips in Masterpiece Cakeshop, Ms. Smith challenged Colorado’s Anti-Discrimination Act because it required her to conduct her business in way that conflicted with her religious beliefs. Unlike Mr. Phillips’ case, however, Ms. Smith’s case was decided on free speech grounds rather than with protections for free exercise of religion. Nevertheless, freedom of religion was a strong undercurrent in the 303 Creative case.
Numerous religious organizations filed amicus briefs in support of Ms. Smith’s right to refuse service based on a religious belief including the Jewish Coalition for Religious Liberty, the National Association of Evangelicals, and the United States Conference of Catholic Bishops. (See a full list here.) As noted by Aaron Tang in his New York Times opinion essay, this case was “the latest in a long-running battle between religious business owners and states seeking to protect the L.G.B.T.Q. community.” Furthermore, many religious groups see 303 Creative as a victory, protecting them from religious persecution (see this statement by the Conference of Catholic Bishops) and confirming the assurance in Obergefell that religious groups would need not endorse same-sex marriage (see this article by the Religious Freedom Institute). Some even see the case as upholding religious liberty (see this post by the Gospel Coalition).
While the 303 Creative decision broadly recognizes a free speech exception to state antidiscrimination laws, reading the opinion against the backdrop of Masterpiece Cakeshop and the amicus briefs suggests the exemption is specifically for religious speech.
Rights of Individuals Identifying as LGBTQ+
As much as the 303 Creative decision upheld First Amendment protections, it also affirmed that businesses with expressive components could refuse service to members of a protected class. According to Justice Sotomayor the decision “reminds LGBT people of a painful feeling they know all too well: There are some public places where they can be themselves, and some where they cannot.” 303 Creative,(slip op. at 36) (Sotomayor, J., dissenting). With the 303 Creative decision, “we are taking steps backward” in the LGBTQ+ rights movement. Id. (slip op. at 36) (Sotomayor, J., dissenting).
Following the opinion’s release, President Biden issued a statement reaffirming his commitment to enforcing federal laws protecting individuals from discrimination based on gender identity or sexual orientation. He also asked for Congress to pass the Equality Act, a federal law that would protect LGBTQ+ individuals from discrimination in places of public accommodation.