Executive Summary: On June 30, 2023, the U. S. Supreme Court issued its ruling in 303 Creative LLC v. Elenis. At issue in the case was a pre-enforcement challenge to Colorado’s public accommodation law, which prohibits businesses from engaging in discrimination when selling goods and services, and whether the law violates a graphic designer’s First Amendment protections by requiring her to create wedding websites for same-sex couples. The Court’s majority held that by creating wedding websites, rather than merely selling a simple good or service, the graphic designer is engaging in “pure speech,” and thus compliance with Colorado’s law requiring her to create wedding websites for same-sex marriages, which she professed to have a religious objection to, would violate her free speech rights under the First Amendment.
Background
Lorie Smith, a graphic designer and owner of 303 Creative LLC, was considering the expansion of her services to include creating wedding websites. Prior to doing so, Smith filed suit in the United States District Court for the District of Colorado seeking to enjoin the Colorado Civil Rights Commission from enforcing the state's anti-discrimination law against her based on her policy of refusing to provide services for same-sex weddings. She asserted that if she was forced to follow Colorado’s Anti-Discrimination Act (CADA), it would violate her First Amendment Right against compelled speech in violation of her sincerely held religious belief that marriage is between a man and a woman. The CADA provides in relevant part that:
It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.
Colo. Rev. Stat. §24–34–601(2)(a).
The CADA also prohibits businesses that provide services from advertising that such services will be “refused, withheld, or denied” or that an individual is unwelcome based on those protected characteristics.
The District Court dismissed Smith’s suit. Smith appealed to the Tenth Circuit Court of Appeals, which affirmed, holding that the CADA did not violate Smith’s First Amendment rights based on strict scrutiny. Strict scrutiny is the highest level of judicial review triggered when state action impacts constitutional rights and requires a compelling state interest that is furthered by state action in the least restrictive way.
The Supreme Court Decision
The Supreme Court relied on a series of stipulated facts between the parties, including Smith’s willingness “to work with all people regardless of classifications such as race, creed, sexual orientation and gender,” and “‘create custom graphics and websites’ for clients of any sexual orientation.” The parties further stipulated that Smith maintains a sincerely held religious conviction that marriage is a union between one man and one woman and that she will not produce content that “contradicts biblical truth” regardless of who orders it. Finally, the parties stipulated that all the graphic and website design services that Smith provides are expressive.
Relying upon these stipulated facts, in its 6-3 decision, the majority distinguished between government regulation of conduct and regulation of “pure speech,” the latter of which carries heightened constitutional protection and applied to this case. While suggesting that refusing services to same-sex couples may be misguided, the majority surveyed the history of First Amendment protections in prior circumstances where First Amendment expressions may have been unpopular, misguided, or even hurtful, including West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943) (the Supreme Court prohibited West Virginia from forcing schoolchildren to recite the Pledge of Allegiance), Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995) (the Supreme Court permitted organizers of a St. Patrick’s Day parade to affirmatively exclude a group of gay, lesbian, and bisexual individuals in the parade), and Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (the Supreme Court permitted the Boy Scouts to exclude from membership an assistant scoutmaster once they learned he was gay). In line with these cases, the majority held that Colorado could not compel Smith to produce speech she does not agree with, and thus cannot force her to create a wedding website for a same-sex marriage.
Importantly, the majority opinion made clear that the holding does not provide a general license to discriminate. While stating that the question of what qualifies as expressive activity protected by the First Amendment “can sometimes raise difficult questions,” the majority dismissed as “pure fiction” the accusation that the decision is akin to endorsing a “separate but equal regime that would allow law firms to refuse women admission into partnership, restaurants to deny service to Black Americans, or businesses seeking employees to post something like a ‘White Applicants Only’ sign.” The majority noted, via footnote, that “context matters” when assessing a First Amendment challenge to an anti-discrimination rule. The majority acknowledged that the Court has previously upheld anti-discrimination laws in the face of a First Amendment challenge where those laws prohibited the exclusion of women as members of an organization or partners of a law firm, citing Hishon v. King & Spalding, 467 U. S. 69 (1984), and Roberts v. United States Jaycees, 468 U. S. 609 (1984), but stated “very different considerations come into play when a law is used to force individuals to toe the government’s preferred line when speaking (or associating to express themselves) on matters of significance.” Additionally, the majority acknowledged, via footnote, that public accommodation laws “sometimes touch on speech incidentally as they work to ensure ordinary, non-expressive goods and services are sold on equal terms” but distinguished such incidental impact from a public accommodation law “applied peculiarly to compel expressive activity.”
The dissent firmly placed the majority’s ruling within the context of civil rights and women’s rights, which were also often fought in the context of public accommodation laws. The dissent noted these laws are designed to prevent “unique evils caused by acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages” and that such a goal “is a compelling state interest of the highest order.” The dissent further argued that “a law that prohibits only such acts by businesses open to the public is narrowly tailored to achieve that compelling interest.” The dissent noted that the majority avoided a prior Supreme Court decision, Runyon v. McCrary, 427 U. S. 160 (1976), signaling that case is unaffected by the majority ruling. In Runyon, a “commercially operated school” unsuccessfully argued that it had a First Amendment right to “exclude Black children,” and that federal law that prohibits such discrimination violated the school’s right to “freedom of speech and association.” Ultimately, the dissent expressed its fear that the majority ruling will permit exclusion of groups from many services.
The Bottom Line
While not an employment case, this decision may have implications for employers, particularly employers who are also considered places of public accommodation under state law. These employers will face additional complexity relating to balancing the rules applicable to places of public accommodation and the possible implications of this decision as it may relate to their employees, which may not be the same.
Additionally, while the First Amendment restricts government action, and employees cannot bring First Amendment claims against private (non-governmental) employers, this decision may embolden some employees to assert First Amendment objections to anti-discrimination laws and workplace policies. However, private employers remain bound to abide by all state and federal anti-discrimination laws and free to enforce their own anti-discrimination policies.
As First Amendment implications are highly fact- and context-specific, employers should consult with counsel should an employee attempt to rely upon this decision to object to workplace policies, practices, or procedures.
