UPDATE, June 30, 2023: The Supreme Court ruled Friday that Colorado’s Civil Rights Commission cannot compel graphic designer Lori Smith to create wedding websites that violate her beliefs.
Smith, a Christian and the owner of graphic design firm 303 Creative, had preemptively sued for an injunction against Colorado state law meant to protect certain groups from discrimination. Both Smith and the state of Colorado had stipulated that she would serve same-sex individuals, but she refused to produce same-sex wedding websites, saying creating such messages would violate her beliefs.
Justice Neil Gorsuch took wrote the majority opinion in the 6-3 decision, taking direct aim at Justice Sonia Sotomayor’s opinion. “Today, however the dissent abandons what this Court’s cases have recognized time and time again: A commitment to speech for only some messages and some persons is no commitment at all.”
He continued: “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.”
Read more background on the case below.
The Supreme Court on Monday will hear oral arguments in a case that strikes at thorny questions at the intersection of free speech and anti-discrimination law in what may look like courtroom déjà vu.
The plaintiff is a web designer whose religious objection to providing wedding websites for same-sex couples would run afoul of a Colorado anti-discrimination law. Substitute the web designer with a baker and websites with cakes, and it’s Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission all over again.
In that case, the Supreme Court issued a narrow 7-2 ruling in 2018 that the state of Colorado was inappropriately hostile toward cake baker Jack Phillips—but without addressing the case’s broader First Amendment issues. This time, in 303 Creative v. Elenis, the Supreme Court is expected to issue a more sweeping ruling in considering whether “applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”
The plaintiff, Lori Smith, owns a graphic and website design business called 303 Creative and says she plans to expand offerings to include wedding websites. Because of her religious beliefs—Smith is a Christian—she wants to limit her products to marriages between heterosexual couples and post a disclaimer on her website to that effect.
Colorado officials say doing so would violate the Colorado Anti-Discrimination Act (CADA), which says businesses and those who provide public accommodations cannot refuse goods and services to protected classes. That includes sexual orientation, age, race, gender, and religion. It also prohibits providers from communicating the intent to deny services based on identity.
Smith preemptively sued the state in 2016, arguing that CADA violates the First Amendment’s protection of free speech and the free exercise of religion and that its communication clause is overly broad.
At the time, the Supreme Court was considering CADA in Masterpiece, so Smith’s case was delayed. When the justices failed to address the free speech questions in that case, a district court ruled against Smith in 2019. She appealed to the 10th Circuit Court of Appeals, which sided with the state in a 2-1 ruling.
The judges who ruled against Smith agreed with her claim that the “creation of wedding websites is pure speech,” and acknowledged that adherence to CADA raised concerns of compelled speech. Yet they still found that CADA did not violate the Constitution because the state had narrowly tailored the law to meet its “interest in ensuring equal access to the commercial marketplace.” Depriving same-sex couples of access to 303 Creative’s services shut them out of a unique kind of marketplace, the court said.
Chief Judge Timothy Tymkovich dissented, arguing that the majority’s decision sets up the precedent of compelled speech where “the government may force Ms. Smith to produce messages that violate her conscience.”
Religion plays a central role in the case, but the legal questions will focus on free speech. When Smith appealed to the Supreme Court, she asked it to consider whether CADA violated the First Amendment’s free exercise of religion clause, and for the justices to reconsider its ruling in Employment Division v. Smith. That case created the precedent that neutral, generally applicable laws cannot be challenged on grounds that they violate the free exercise clause of the First Amendment.
Instead, the Supreme Court chose to limit its review of 303 Creative to the free speech issue, but Smith’s lawyers at Alliance Defending Freedom—which also represented Phillips in Masterpiece—argued that she “cannot create websites that promote messages contrary to her faith, such as messages that condone violence or promote sexual immorality, abortion or same-sex marriage.”
Meanwhile, Colorado Attorney General Philip Weiser argued that “prohibiting companies from displaying what would amount to ‘Straight Couples Only’ messages is permissible because it restricts speech that proposes illegal activity and is therefore unprotected by the First Amendment.”
The makeup of the Supreme Court looks much different than when it sidestepped the First Amendment questions in 2018’s Masterpiece ruling, now with two Trump-appointed justices who may be swayed by First Amendment arguments. Brett Kavanaugh has since replaced Anthony Kennedy, who essentially acted as a centrist, and Amy Coney Barrett replaced liberal icon Ruth Bader Ginsburg. (Ketanji Brown Jackson likely didn’t change the ideological status quo when she replaced retiring Justice Stephen Breyer last year.)
In Masterpiece, Justice Clarence Thomas, joined by Justice Neil Gorsuch, wrote a concurring opinion arguing for a broader ruling and that designing cakes constituted an act of artistic expression that fell under the protection of the First Amendment’s free speech clause.
At the time, Ginsburg, joined by Justice Sonia Sotomayor, countered in a dissent that it was not clear that a wedding cake would cause people to think Phillips was endorsing a particular view on same-sex marriage: “When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding—not a cake celebrating heterosexual weddings or same-sex weddings.”
But, as even the lower court noted in ruling against Smith, designing a website is much more clearly an act of expression, or speech.
“There are clearly still First Amendment concerns that a lot of people would like clarified and answered,” Matthew Feeney with the London-based Centre for Policy Studies told The Dispatch. “But the court in [Masterpiece] didn’t actually provide an answer on like exactly how public accommodation or anti-discrimination [laws] does intersect with freedom of speech and religion.”
A ruling in Smith’s favor would most immediately affect Colorado but could also have reverberations for the 45 states with some sort of public accommodation law, so it’s no surprise that nearly 100 parties have filed amicus briefs. But, as was the case with Masterpiece, much depends on how narrow—or broad—the ruling is.
Though he cautioned that predicting justices’ decisions is never certain, Feeney thinks Colorado’s law will find itself in the high court’s crosshairs: “I think it’s likely that 303 Creative will prevail.”
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