In 303 Creative LLC v. Elenis, the Supreme Court is considering for a third time since its 2015 marriage equality decision, Obergefell v. Hodges, whether state or local jurisdictions can prohibit private agencies or businesses from refusing to provide services to same-sex couples who are married or intend to marry. In this case, the Court will consider free speech claims asserted by 303 Creative LLC and its owner, Lorie Smith, a Colorado website designer who does not want to design and execute websites for same-sex couples planning to marry.
In the first such case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Court evaded the substantive issue by deciding the case on narrower grounds. A baker who styled himself a “cake artist” claimed both religious free exercise and free speech bases for declining to produce a custom-designed wedding cake for a same-sex couple. The Colorado Civil Rights Commission and the state’s court of appeals rejected his First Amendment defenses. The Supreme Court determined that the Colorado Civil Rights Commission had evinced hostility to the wedding vendor’s religion, thus tainting the administrative process, and therefore ruled in the baker’s favor on Free Exercise grounds.
In the second case, Fulton v. City of Philadelphia, the Court determined that a Catholic foster care agency that lost a municipal contract because it would not certify same-sex married couples as foster parents was not a place of public accommodation, and thus was not subject to the municipal respondent’s anti-discrimination ordinance. The Court also held that because an anti-discrimination provision in the contract between the municipal respondent and the Catholic agency allowed for exceptions at the discretion of the respondent’s child welfare commissioner, the provision did not qualify as a rule of “general applicability.” Thus, strict scrutiny would be applied to the respondent’s insistence that the Catholic agency provide its foster care vetting services to married same-sex couples.
This “general applicability” test was derived from Employment Division, Department of Human Resources of Oregon v. Smith, where the Court held that religiously neutral laws of general application whose enforcement incidentally burden an individual’s free exercise of religion are not subject to strict scrutiny and therefore may be sustained if they rationally support a legitimate government interest. A government policy that burdens free exercise of religion and does not fall within the “general application” category will consequently be subjected to strict scrutiny, requiring the government to prove, among other things, a compelling interest in applying its rule. The Court in Fulton found that the respondent failed to show that its policy was necessary to serve a compelling interest, and noted that there were many other foster care service providers in the relevant metropolitan area that had no religious objections to serving same-sex couples.
In 303 Creative, the Court revisits the same state statute that applied in Masterpiece Cakeshop—Colorado’s ban on discrimination in public accommodations because of sexual orientation. This time the Court is focusing on freedom of speech rather than free exercise of religion as the claimed First Amendment basis for an exception to the general rule established by Obergefell that for legal purposes, same-sex marriages are entitled to the same treatment as different-sex marriages.
The Court’s decision in Obergefell answered the straightforward question of whether states were obligated to allow same-sex couples the same right to marry that was provided to different-sex couples but did not address how those same-sex married couples would be dealt with by nongovernmental actors. In his opinion for the Court, Justice Anthony M. Kennedy evaded the question, writing:
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate.
The opinion did not address whether opponents of same-sex marriage would be able to claim exemption from compliance with statutory prohibitions of discrimination in public accommodations based on sexual orientation as part of their advocacy, as a matter of either free exercise or freedom of speech.
The question appears to be intensified when the goods or services at issue involve sufficient expressive quality to potentially fall within the ambit of free speech claims and not just claims based on religious beliefs. If one recognizes an expressive component in virtually any goods or services customarily identified with marital rites, such as creating the text of printed wedding invitations, custom-designed wedding cakes, festive floral arrangements, or photographs or videos documenting a wedding ceremony and its participants, then free speech might theoretically always be implicated. When the government requires a wedding vendor to provide the same services for same-sex couples that it does for different-sex couples, the vendor might argue that requiring her to provide the goods or services would be a form of compelled speech in support, approval, or endorsement of the same-sex couple’s marriage (or, more broadly, the concept of legal same-sex marriages), and the Free Exercise Clause would not need to be invoked as a defense. Employment Division v. Smith, which concerns free exercise and not free speech claims, would not be an impediment to the plaintiff’s constitutional free speech claim.
This article will first discuss the development of the 303 Creative case and the First Amendment Freedom of Religion and Speech arguments. Part II analyzes prior wedding vendor precedents starting with Elane Photography LLC v. Willock in 2014 and ending in 2022 with Klein v. Oregon Bureau of Labor & Industries. Part III examines the pending Supreme Court arguments and implications for anti-discrimination law. Finally, the conclusion explains why the Colorado Civil Rights Commission should prevail in 303 Creative.
Lorie Smith, the proprietor of 303 Creative LLC, made a double-barreled religion and speech argument in her claim against the Colorado Civil Rights Commission, and invoked 14th Amendment Due Process. Smith, a website designer who had not previously designed wedding websites, alleged that she wanted to expand her business to include wedding websites but feared prosecution if she refused to provide her services to same-sex couples or gave notice of such a restriction on her website. The Colorado statute prohibits both a denial of service because of a potential customer’s sexual orientation, as well as communicating the business’s policy of denying such services on the basis of a prohibited ground under the statute. Smith brought suit against the members of the Colorado Civil Rights Commission and the Colorado Attorney General to immunize herself from such potential prosecution, noting that the Masterpiece Cakeshop litigation showed the willingness of the Colorado Civil Rights Commission to enforce its statute against a wedding vendor who had raised similar religious and free speech defenses.
The district court found that Smith lacked standing to challenge the discrimination ban but that she could challenge the communication ban. However, the court found that the provision forbidding communicating an unlawful policy did violate the First Amendment.
The Tenth Circuit, to the contrary, found that Smith had standing to challenge both provisions but affirmed the ruling granting summary judgment to defendants. It held that under Employment Division v. Smith, Lorie Smith did not enjoy a religious exemption because the state could rationally prohibit discrimination in business transactions. As to the free speech claims, the court found that the Accommodation Clause provision was a content-based speech regulation to be evaluated under the strict scrutiny standard. The court concluded that the state had a compelling justification to burden Smith’s freedom of speech: “Excepting Appellants from the Accommodation Clause would necessarily relegate LGBT consumers to an inferior market because Appellants’ unique services are, by definition, unavailable elsewhere.” Similarly, the Communications Clause did not violate Smith’s First Amendment rights, as proposed language that Smith wanted to include on her website “expresse[d] an intent to deny service based on sexual orientation—an activity that the Accommodation Clause forbids and that the First Amendment does not protect.” The leading case on this principle is Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, in which the Court rejected a free speech challenge to a municipal law that was interpreted as banning a newspaper from publishing separate help-wanted advertisements for “Male Interest” and “Female Interest” jobs.
303 Creative’s petition for certiorari sought a ruling on both the free exercise of religion and free speech issues, but the Supreme Court granted review only on the second, based on the petitioner’s phrasing: “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 respondents’ merits brief framed the question presented differently: “Does a public accommodations law violate the Free Speech Clause when it requires a business to offer all customers its goods and services—including customized goods and services—regardless of those customers’ protected characteristics?”
The first significant appellate ruling on this conflict of rights came from the New Mexico Supreme Court in 2013, when a member of a same-sex couple brought suit under the New Mexico Human Rights Act (NMHRA) against a wedding photographer who had refused to provide her usual services for their same-sex commitment ceremony. The photographer asserted religious objections to same-sex unions and made a compelled speech argument, emphasizing the expressive and artistic functions of her photographic services, which went beyond taking pictures to include editing photographs and compiling digital wedding albums for customers. As such, she argued, her business involved artistic and expressive functions that could be said to express approval of the marriages that she was documenting for her customers.
With regard to the photographer’s free speech claim, the court identified two lines of compelled speech cases: those in which the government was requiring a private actor to “speak the government’s message”; and those in which the government was compelling a private actor to speak a customer or client’s message.
As to the former, the court rejected the photographer’s argument that through the nondiscrimination law the government was compelling the photographer to speak the government’s message, writing that “the NMHRA does not require Elane Photography to recite or display any message. It does not even require Elane Photography to take photographs. The NMHRA only mandates that if Elane Photography operates a business as a public accommodation, it cannot discriminate against potential clients based on their sexual orientation.” The court looked to Rumsfeld v. Forum for Academic and Institutional Rights, Inc., in which the Supreme Court ruled that the “Solomon Amendment,” a statute threatening to suspend federal financial assistance to educational institutions that did not provide “equal access” to military recruiters, did not violate the free speech rights of the educational institutions. Although the institutions disapproved of the military’s policies discriminating against lesbians and gay men, the Court found that complying with the congressional directive did not implicate the law schools as endorsing the military’s exclusionary enlistment policies. “The [Supreme] Court observed [in Rumsfeld] that the federal law ‘neither limits what law schools may say nor requires them to say anything,’” wrote the New Mexico court. “Schools were compelled only to provide the type of speech-related services to military recruiters that they provided to non-military recruiters. ‘There [was] nothing . . . approaching a Government-mandated pledge or motto that the school [had to] endorse.’” Similarly, the New Mexico court found that the state was not compelling the photographer to endorse same-sex marriages, but merely requiring her to provide her services as a public accommodation without discriminating based on the sexual orientation of the customers.
As to the second strand of compelled speech cases, the New Mexico court wrote, “[t]he United States Supreme Court has never found a compelled-speech violation arising from the application of anti-discrimination laws to a for-profit public accommodation. In fact, it has suggested that public accommodation laws are generally constitutional.” The photographer urged reliance on Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, in which the Court held that Boston could not use its anti-discrimination ordinance to require the sponsor of a parade to include a group carrying a banner that proclaimed the gay identity of its members. That case rested on the Court’s conclusion that the annual St. Patrick’s Day–Evacuation Day Parade sponsored by a war veterans group was a quintessentially expressive activity and the organizers of the parade must be free to determine the message of their activity and to exclude messages that they did not want to communicate through their expressive activity. The New Mexico court rejected the contention that a commercial photography business fell into the same category as a “free-speech event[]” such as a parade. “Elane Photography . . . is an ordinary public accommodation, a ‘clearly commercial entit[y] that sells goods and services to the public,’” wrote the court, which continued:
Unlike the defendants in Hurley or the other cases in which the United States Supreme Court has found compelled-speech violations, Elane Photography sells its expressive services to the public. It may be that Elane Photography expresses its clients’ messages in its photographs, but only because it is hired to do so. The NMHRA requires that Elane Photography perform the same services for a same-sex couple as it would for an opposite-sex couple; the fact that these services require photography stems from the nature of Elane Photography’s chosen line of business.
The baker in Masterpiece Cakeshop also posed his claim for exemption alternatively on the religious basis of his opposition to same-sex marriages and on the expressive function of the custom-designed wedding cakes he produced. The Colorado courts rejected both arguments, but, as noted above, the Supreme Court avoided addressing them by finding that bias against the baker’s religious beliefs had infected the administrative proceedings, requiring that the Commission’s decision against the baker be set aside.
Other courts have been divided about how to deal with free speech defenses by wedding vendors who claimed that the expressive content of their services privileged them under the Free Speech Clause to decline business on compelled speech grounds. As examples, the Arizona Supreme Court found that a business providing customized wedding invitations need not comply with a municipal anti-discrimination ordinance. Minnesota-based wedding videographers successfully defended a refusal to document same-sex marriages in the Eighth Circuit. On the other hand, Washington and Oregon courts found no First Amendment privilege for a floral designer or a wedding cake designer.
The Tenth Circuit in 303 Creative rejected the website designer’s free speech defense on the ground that the challenged provisions survived strict scrutiny due to the state’s compelling interest in preventing discrimination by businesses. However, the New Mexico Supreme Court’s theory of the case was not shared by the Tenth Circuit, which accepted Lorie Smith’s argument that the burden imposed on her free speech rights under the Colorado statute was a content-based regulation of speech and therefore subject to strict scrutiny. The court pointed out that in support of her free speech claims, Lorie Smith claimed unique artistic and expressive skills as a website designer. Her claims about her work led to the conclusion that a same-sex couple seeking website design services could not obtain the equivalent from an alternative website designer. Consequently, the court found that the state’s compelling interest in protecting same-sex couples from discrimination by businesses could not be achieved other than by requiring Smith to refrain from discriminating against them. There was no narrow tailoring that could be applied to lessen the burden to her free speech rights that Smith claimed she would suffer, without sacrificing the same-sex couples’ ability to obtain her unique services. On that basis, the court concluded that this was the rare case in which a content-based regulation of speech could survive strict scrutiny.
The case was decided by the district court and the Tenth Circuit based on a Joint Statement of Stipulated Facts (Joint Statement) that provided the basis for the Tenth Circuit’s conclusion that Smith’s website design services were unique and thus could not be obtained elsewhere. However, the Joint Statement also states that “[t]here are numerous companies in the State of Colorado and across the nation that offer custom website design services, the areas of 303 Creative’s specialization.” The Joint Statement identifies online directories that list several hundred website design firms in Colorado and several thousand nationally, although the Joint Statement does not specify how many of them specialize in designing wedding websites. The appendix to the certiorari petition also provides a screen shot of a mock wedding website that Smith had designed to show the service she might provide if she could obtain a judgment that she is not subject to the state’s nondiscrimination requirement. Smith provided this mock-up to reinforce her claim that the text imparts a point of view about the couple’s wedding, arguably supporting the court’s conclusion that the Free Speech Clause is relevant to this case.
Responding to the grant of certiorari with its brief on the merits, Colorado disavowed the Tenth Circuit’s approach to the free speech claims. Without citing the New Mexico Supreme Court’s analysis, Colorado essentially adopted and expanded upon it. They noted that Colorado had first prohibited businesses from discriminating during the 19th century, following a common law principle dating back to the early English common law that businesses providing goods and services to the public could not discriminate among customers but had to serve all comers. As such, the state argued, the law was a regulation of business practice, not a content-based regulation of speech. Any burden of the free speech rights on a particular business was merely incidental, subject “at most” to intermediate scrutiny; tests that the state asserted were easily met by both of the challenged provisions. “Because the Act regulates sales, and not the products or services sold,” argued the state, “it does not prohibit or compel the speech of any business.” The state also argued that the petitioner’s proposed exemption from public accommodation laws would be “unworkable” because it would leave both businesses and customers to guess whether it applied in any particular case:
The Company offers no limiting principle to implement its various dividing lines for what or who is shielded by its proposed exemption. The Company’s exemption cannot be limited to religiously motivated objections, public accommodations laws, or concerns about same-sex marriage. It offers no standard to determine who qualifies as an “artist,” what a custom product is, or when a message is affected.
Without workable standards, companies would challenge regulations of all kinds, requiring rank-and-file workers in civil rights agencies, and then reviewing courts, to exercise significant discretion in determining whether an exemption was appropriate. The Company’s standardless exemption would require governments and courts to make difficult determinations about what level of customization, expression, or curation would qualify for such an exemption. Such discretion would itself create constitutional concerns.
A simple thought experiment will demonstrate the correctness of this argument. Suppose that Lorie Smith’s sincere religious belief is that only marriages sanctified by a Christian church are moral and to be celebrated. Could she pose a religious test for any couple seeking her website design services and turn away those proposing marriages in some other faith (e.g., Judaism or Islam) or purely civil marriages because she believes that designing a website for them would communicate approval or celebration of marriages that violate her religious beliefs? What if her religious beliefs oppose mixed-race marriages? Would she enjoy an exemption, even though the Supreme Court has long since ruled that interracial couples enjoy a constitutional right to marry? What if she was selling floral design for weddings rather than website design? Would she qualify as an “artist” entitled to turn away customers due to her disapproval of their marriages and her concern that employing her skills for their wedding would express endorsement?
At first consideration, 303 Creative and similar cases present an apparent direct clash of constitutional rights. The website designer feels that the state has effectively conditioned her ability to provide design services for marriage websites on her willingness to serve same-sex couples, which she believes would require her to endorse and celebrate same-sex marriages, contrary to her religious beliefs. The state asserts that it has a compelling interest in making sure that same-sex couples do not encounter discrimination when they seek a website designer for their pending nuptials and argues that requiring any business selling goods or services to the public to refrain from discriminating on grounds specified by statute presents no content-based regulation of speech. As the state points out, the website designer can refrain from providing the service of designing wedding websites, as she has done from the formation of her business to the present. The statute does not compel her to sell this service. Furthermore, she can say whatever she believes about same-sex marriages on her website, disabusing visitors to the site of any belief that she celebrates or endorses same-sex marriages, without incurring any liability, so long as she offers the same service or product to any potential customer without discriminating because of their sexual orientation.
The most effective part of the state’s argument is its contention that the exemption proposed by the website designer is not workable because it could effectively neuter the civil rights law and defeat the state’s interest in preventing discrimination in the marketplace. Any business could argue that its goods or services have expressive content, or that its action in selling its goods or services could be construed as communicating endorsement or approval of the customers to whom it sells those goods or services. Such an argument is antithetical to the concept of a ban on discrimination in public accommodations. Yet, in Masterpiece Cakeshop, the Supreme Court commented, “[it] is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”
For such protection to be meaningful, it should not be subject to unworkable, indeterminate exemptions that would leave both businesses and potential customers guessing about whether or not the business is free to discriminate based on the religious, philosophical, or moral beliefs of the business’s owners or employees. The solution sketched briefly by the New Mexico Supreme Court and developed more fully by the Respondent’s Brief on the Merits seems more correct than that proposed by the petitioner. The law regulates sales, not content or speech. Unless the Court is ready to disavow its rulings in Rumsfeld and Pittsburgh Press, it should affirm the Tenth Circuit’s result, if not its reasoning.
