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July 05, 2022 HUMAN RIGHTS

What’s at Stake in 303 Creative

by Donald Verrilli

Earlier this year, the Supreme Court granted review in 303 Creative v. Elenis to decide an issue of great consequence for the enforcement of civil rights laws in this country: whether applying a public accommodations law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment. The Supreme Court considered, but ultimately did not decide, the question in 2018 in Masterpiece Cakeshop v. Colorado Civil Rights Commission (138 S. Ct. 1719 (2018).

Like Masterpiece Cakeshop, 303 Creative involves a challenge to Colorado’s Anti-Discrimination Act. The law prohibits businesses from “directly or indirectly . . . refus[ing] . . . to an individual or a group, because of . . . sexual orientation . . . the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations. . . .” (Colo. Rev. Stat. § 24-34-601(2)(a). The law also prevents businesses from making any communication indicating a desire not to provide goods or services based on a customer’s sexual orientation.

Lorie Smith, the founder & sole owner of 303 Creative, a website design company, brought a pre-enforcement challenge to the CO law in federal court.

Lorie Smith, the founder & sole owner of 303 Creative, a website design company, brought a pre-enforcement challenge to the CO law in federal court.


Lorie Smith, the founder and sole owner of 303 Creative, a website design company, brought a pre-enforcement challenge to the Colorado law in federal court. She planned to offer her services to create wedding websites. But because she believes that same-sex marriage conflicts with God’s will, she wants to serve only heterosexual couples. According to her petition for certiorari, Smith plans to create websites that “tell the couple’s story in a way that shares her religious beliefs about marriage” (Cert. Pet. at 5, 303 Creative LLC v. Elenis, No. 21-476 (U.S. Sept. 24, 2021), and she wants to announce on 303 Creative’s website that her religious beliefs preclude her from creating websites for same-sex weddings. Colorado’s law, she asserts, compels her to speak in a manner that violates her religious beliefs because it would force her to put her creative talents to work to celebrate a same-sex union and at the same time suppresses her speech because she cannot explain on her company’s website why she will not create wedding websites for same-sex couples. After losing in the lower federal courts, Smith (via 303 Creative) asked the Supreme Court to review her case. And the Court agreed to decide whether Colorado’s law abridges her First Amendment freedom of speech.

Smith’s challenge poses weighty and difficult questions. Her free speech argument is framed in terms of the intrinsically expressive character of her work: website design. And there is an expressive or creative element to the services she provides to the public. The same could be said of many professionals whose services might be needed for a wedding—photographers, musicians, florists, graphic artists, and even bakers (as Justice Clarence Thomas asserted in Masterpiece Cakeshop). But, at bottom, Smith is asserting a right of conscience.

Her constitutional claim could just as readily be cast as an assertion of the right of freedom of association (or more precisely to be free of compelled association). Or her claim could have been framed as an argument that Colorado’s law violates the First Amendment’s guarantee of the free exercise of religion because it forces her to act in ways that her religious faith forbids. In fact, she did bring just such a claim alongside her free speech claim, but the Supreme Court declined to hear it. That is doubtless because the petition asked the Court to overrule Employment Division v. Smith, 494 U.S. 872 (1990), the 1990 opinion by Justice Antonin Scalia holding that the Free Exercise Clause did not afford exemptions from neutral laws of general application. The justices divided sharply over whether to overrule Smith just one year ago in Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021). Smith believes that same-sex weddings violate God’s will and does not want to contribute her talents and effort to promote them. Whether framed as a matter of compelled speech, compelled association, or religious exercise, 303 Creative pits Smith’s asserted right of conscience against a duly enacted law forbidding those who provide goods and services to the public from discriminating against their customers based on sexual orientation.

This is not the first time we have confronted an issue of this kind. 303 Creative poses questions very much like the questions the Supreme Court faced after Congress passed the Civil Rights Act of 1964. With almost 60 years of distance, it may be difficult to remember that the principle of racial equality was far from securely established in 1964 when Congress enacted this landmark law. As is true now with respect to sexual orientation, the Supreme Court had only relatively recently insisted on equality before the law for African Americans. And then, as now, the existence and enforcement of this recently recognized constitutional protection remained a subject of sometimes bitter disagreement in our society. The campaign of “massive resistance” against the integration of schools and other public facilities had not run its course. Only one year earlier, Medgar Evers had been murdered for his civil rights organizing efforts in Mississippi, and Dr. King had authored his “Letter from Birmingham Jail” and spoken during the March on Washington. And the brutal assaults on John Lewis and other marchers at the Edmund Pettus Bridge were still a year in the future.

That was the backdrop against which Congress debated the Civil Rights Act. And while anti-discrimination principles in general received wide endorsement in Congress, the debates featured passionate arguments that those principles should be subordinated to the rights of business owners to discriminate based on their personal beliefs about customers. Senator J. Lister Hill, for example, argued that the act violates an individual’s “fundamental right” to choose his associates and that “forced association is not free” (110 Cong. Rec. 8444 (1964). Senator Barry Goldwater raised similar constitutional objections to the bill. And after the Civil Rights Act became law, business owners pressed the same constitutional arguments in the courts. They challenged the act on the grounds that it infringed the “personal rights of persons in their personal convictions and in their choice of associates [that] have been . . . accorded constitutional protection by this Court,” (Brief for Appellees at 33, Katzenbach v. McClung, 374 U.S. 294 (1964), 1964 WL 81100 at *33) and that mandating service of African American customers forced a restaurant owner to violate his religious beliefs in the separation of the races (Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 n.5 (1968). By decisively rejecting those arguments, Congress and the Supreme Court ensured that basic protections against race discrimination, though controversial when first enacted and implemented, would mature into enduring norms that command broad acceptance and mark our progress as a nation.

To many, the present controversy looks different because it centers on a business owner’s sincerely held religious objections to same-sex marriage—beliefs the Supreme Court in Obergefell v. Hodges described as resting on “decent and honorable religious or philosophical premises” (576 U.S. 644, 672 (2015)). But viewing the case in this way risks obscuring what is at stake. What if, for example, Smith had instead asserted that her religious beliefs forbade her from employing her creative abilities to celebrate an interracial marriage, or even to serve African Americans at all? While such hypotheticals may seem far-fetched today, those are precisely the kinds of arguments that challengers to the civil rights laws made during the 1950s and 1960s. The Supreme Court gave those arguments short shrift in upholding the Civil Rights Act and other federal anti-discrimination laws.

But what if the Court had instead validated such claims? Doing so would have established the principle that the Constitution required that equal treatment for African Americans in the essential elements of life be subordinated to individuals’ claims that their conscience would not allow them to treat African Americans equally—or even to deal with African Americans at all as customers, tenants, passengers on trains or buses, or employees in the workplace. It is impossible to know how widespread such claims of conscience would have been, and how much the nation’s commitment to racial equality would have been damaged, had the Supreme Court vindicated such claims. But there is every reason to think that vindicating such claims would have profoundly undermined the emergence of a societal consensus repudiating race discrimination.

Some find these historical parallels inapt, unfair, or even insulting. For example, in his Obergefell dissent, Justice Thomas called them “offensive and inaccurate” (576 U.S. ___, 730 n.5 (Thomas, J., dissenting)). And as framed before the Supreme Court, the actual dispute in 303 Creative is narrower in scope. A holding that government cannot compel an individual to engage in expressive activity to promote something the individual opposes on moral or religious grounds would not, by its terms, equate to a constitutional right on the part of any person to refuse to serve gay or lesbian customers seeking the person’s services when those services are not themselves the kinds of expressive activities that the First Amendment protects. Moreover, Smith, like the proprietor of the Masterpiece Cakeshop before her, has made clear that she has no objection to providing her services to gay or lesbian people; she seeks only to be free to refuse to provide her services to promote same-sex weddings.

Nevertheless, if Smith’s free expression claim is upheld, the analogical pressure to extend that right of conscience to anyone who asserts it (for reasons of religious belief or freedom of association) will be exceedingly difficult to resist. It is hard to see how the religious objections of wedding caterers or companies that rent folding chairs could be afforded a lesser constitutional status than the claims of a website designer. By the same token, it is hard to see how recognition of such a right could be limited to assertions based on opposition to same-sex marriage. What principled basis would there be for recognizing Smith’s claim but denying the claim of another website designer who believes homosexuality violates God’s will and does not want to serve gay or lesbian customers at all? Or for denying the claim of a website designer who opposes interracial marriage? To be sure, in Masterpiece Cakeshop, some suggested that claims like those of Smith could be recognized without necessarily implying that a person could claim a First Amendment exemption to a public accommodations law based on a religious objection to interracial marriage, on the theory that the government has a particularly compelling interest in eradicating race discrimination (e.g., Brief for the United States at 32, Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111 (U.S. Sept. 7, 2017). But the inescapable logic of such a distinction is that discrimination based on sexual orientation is acceptable in circumstances in which discrimination based on race is unacceptable.

The people of Colorado have drawn exactly the opposite conclusion as a matter of policy in the state’s Anti-Discrimination Act. It is hard to see what justification the Supreme Court would have—apart from a frank recognition that eradicating discrimination based on sexual orientation is not in the Court’s view a compelling governmental interest—for treating the two differently as a matter of constitutional law. It is hard to see, in turn, what basis the Court would have for reaching that conclusion in the face of a judgment by the people of Colorado that discrimination against gays and lesbians in public accommodations should be treated no differently from discrimination against African Americans. So the implications of a ruling in favor of Smith could be enormously destabilizing—to both the status of LGBTQ people as equal citizens in this country and the law’s ability to protect people against all forms of invidious discrimination.

A very great deal is therefore at stake in 303 Creative.

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Donald Verrilli

Partner, Munger, Tolles & Olson LLP

Donald Verrilli is a partner with Munger, Tolles & Olson in Washington, D.C. He served as solicitor general of the United States from 2011 to 2016.