303 Creative LLC v. Elenis

FIRST AMENDMENT

Does a Colorado Law That Prohibits Discrimination by Sexual Orientation Violate a Website Designer’s Free-Speech Rights?

 CASE AT A GLANCE

 Lorie Smith is the sole owner of 303 Creative, a for-profit company that creates websites and other designs. Smith would like to expand her portfolio and create custom websites for weddings. She designed a web page to announce this service, with a disclaimer that she will only create websites for marriages between one man and one woman, consistent with her religious beliefs. She has not posted the page, however, because she believes that Colorado’s antidiscrimination law would prohibit this message. She sued, arguing that Colorado’s antidiscrimination law violates her First Amendment right to free speech.

  303 Creative LLC v. Elenis
 Docket No.21-476

 Argument Date: December 5, 2022 From: The Tenth Circuit

by Steven D.Schwinn
University of Illinois Chicago School of Law, Chicago, IL

 Introduction

 The First Amendment prohibits government from compelling speech and from regulating speech based on its content and viewpoint. But on the other hand, the First Amendment allows the government to regulate conduct, even if the regulation has an incidental effect on speech, so long as the regulation is unrelated to the expression of ideas. And it allows the government more freedom to regulate commercial speech. This case pits these First Amendment principles against each other.

Issue

Can a website designer refuse to create a website for a same-sex wedding, even though state law prohibits discrimination by sexual orientation?

Facts

 Lorie Smith is a graphic artist and website designer. She is the sole owner of 303 Creative, her custom design studio, where she provides website and graphic design, branding, marketing strategy, and social-media management services to her clients.

Smith will serve any client, regardless of race, creed, sexual orientation, or gender. But she will not create content that contradicts her Christian beliefs. So, for example, she “will decline any request—no matter who makes it—to create content that contradicts the truths of the Bible, demeans or disparages someone, promotes atheism or gambling, endorses the taking of unborn life, incites violence, or promotes a concept of marriage that is not solely the union of one man and one woman.”

Smith expanded her portfolio to include custom wedding content and websites. According to Smith, “[e]very one of [her] wedding websites will not only express messages about the beauty and eternal commitment of the couples, but will also express approval of the couple’s marriage.” Smith designed a sample of a wedding website that includes a Bible passage, but the website doesn’t otherwise reflect the content of potential future websites. Smith says that her websites will bear a notice that reads, “Designed by 303Creative.com.”

Smith also designed a 303 Creative website page that announced her new wedding services. The design includes a statement that God is calling Smith “to explain His true story about marriage, and to use the talents and business He gave [Smith] to publicly proclaim and celebrate His design for marriage as a life-long union between one man and one woman.” The statement goes on:

These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage—the very story He is calling me to promote.

Smith says that she “cannot yet share that message,” however, because “Colorado forbids it on pain of investigation, fines, and re-education.” Smith is referring to two provisions in the Colorado Anti-Discrimination Act, or CADA. The first, the Accommodations Clause, prohibits businesses that sell or offer services “to the public” from discriminating based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” The second, the Communications Clause, prohibits businesses from “display[ing]” a “notice” that “indicates that the full and equal enjoyment of the goods [or] services…will be refused, withheld from, or denied an individual or that an individual’s patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable” based on a protected characteristic.

Smith brought a pre-enforcement challenge to CADA and sought an injunction halting its enforcements. She alleged that the two provisions violated her free-speech rights because they would require her to create websites for same-sex weddings. The district court ruled against Smith, and the United States Court of Appeals for the Tenth Circuit affirmed. This appeal followed.

Case Analysis

This case involves several different free-speech doctrines and pits them against each other. On the one hand, the compelled-speech doctrine says that the government cannot require individuals to communicate a message they do not wish to communicate. In addition, the general rule against content- and viewpoint-based restrictions says that any government regulation of speech based on the content or the viewpoint of the speech must be narrowly tailored to meet a compelling government interest. (That test is called “strict scrutiny.”)

On the other hand, the conduct-as-speech doctrine allows the government to regulate speech that is incidental to conduct at a lower level of scrutiny (“intermediate scrutiny”), so long as the regulation is not related to the expression of ideas. Moreover, the commercial-speech doctrine allows the government to regulate speech promoting a commercial exchange also at a lower level of scrutiny.

The parties frame their arguments around these competing doctrines.

Smith argues first that CADA compels her to speak in violation of the First Amendment. She says that her wedding websites amount to “pure speech” and that CADA, by requiring her to create websites for weddings that contradict her beliefs, impermissibly compels her to speak in violation of her free-speech rights.

Smith points to Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), in support of her claim. The Court in that case ruled that the First Amendment allowed the organizers of a public parade celebrating Irish heritage to exclude an LGBTQ+ group, even though antidiscrimination law prohibited the organizers from discriminating on the basis of sexual orientation. Smith says that under Hurley when an antidiscrimination law “makes ‘speech itself…the public accommodation,’ and forces someone to ‘alter’ their ‘expressive content,’ the government must satisfy strict scrutiny,” which it cannot do here. According to Smith, Hurley applies squarely to her case: “CADA makes an artist’s speech the accommodation, and Colorado’s application of the law to an artist like Smith forces her to alter her expressive content in untenable ways.”

Smith contends that she does not lose her free-speech rights just because she creates speech as part of her business. She says that CADA’s application to her speech is not “incidental” to her conduct; instead, CADA directly regulates her “pure speech.” Moreover, she claims that she is not a “passive conduit” for her client’s messages; instead, she creates the messages herself and “retains final editorial control over them.” Smith claims this is “[her] speech and her message.”

Smith argues next that CADA’s two provisions impermissibly regulate her speech based on its content and its viewpoint. She says that both provisions require her to promote content and a viewpoint that she finds objectionable—any marriage other than one between one man and one woman. Smith claims that CADA does not serve a compelling interest in enforcing the two provisions, because, while a state may have a general interest in protecting equal access to the marketplace, it has no compelling interest in “ensuring [general] access to a particular person’s unique, artistic product.” Moreover, she contends that CADA is not narrowly tailored, because the state “has numerous, less burdensome alternatives to achieve any legitimate interests it might articulate.” For example, Smith says that “Colorado could interpret CADA to allow speakers who serve all people to decline specific projects based on their message,” it could “enact[] textual exemptions for artists who decline projects based on their messages,” it could exempt services for the “wedding industry,” or it could limit CADA’s reach to “physical spaces.”

Finally, Smith argues that neither the antidiscrimination context nor the topic of marriage “justifies an exception to th[e] cardinal rule” that government cannot “violate artists’ freedom of conscience or compel them to ‘mouth support for views they find objectionable.’”

The state counters that CADA regulates Smith’s business, not her speech. The state says that a business like 303 Creative can decide for itself what it would like to sell. A business can even define its services quite narrowly, for example, “only websites that include biblical quotes describing marriage as the union of one man and one woman.” But the state contends that once a business decides what to sell, CADA requires the business to sell “to all without regard to a customer’s protected characteristic.” In other words, according to the state, CADA regulates sales, not the services or products sold. And “it does not prohibit or compel the speech of any business.”

Moreover, the state says that CADA does not regulate expressive conduct. According to the state, “[r]outine commercial transactions do not become expressive conduct just because the business believes a sale would convey approval of the buyer.” But to the extent that the Court “needs to consider the content of the Company’s websites to determine whether the Company will deny equal access to its services,” the state says that the case is not yet ripe for judicial review. According to the state, that’s because nobody has asked Smith to create a website for a same-sex marriage (although Smith claims that she received an inquiry), and the state has not required her to create such a website.

The state argues next that even if the Accommodations Clause burdens Smith’s speech, the burden is “incidental,” that is, not related to the expression of Smith’s ideas. As such, the state says that the clause is subject to a lower level of review, intermediate scrutiny, and easily passes.

But even if the Court were to apply strict scrutiny, the state argues that the Accommodations Clause passes muster. The state claims that it has a compelling interest “in ensuring equal access to publicly available goods and services”—an interest that is “rooted in this nation’s history and traditions, which has long recognized both the material and dignitary harms of the denial of service.” Moreover, the state contends that the Accommodations Clause is narrowly tailored to meet this interest, because “[i]t targets only specific commercial conduct: the discriminatory sale of products and services by businesses open to the public.” The state contends that Smith’s proposed exemptions (which purport to show why CADA is not narrowly tailored) “would upend antidiscrimination law—and other laws too”—by “depart[ing] from this Court’s doctrine and creat[ing] an enforcement regime riddled with uncertainty and inconsistency.”

Finally, as to the Communications Clause, the state argues that “[i]t prohibits only commercial speech that facilitates illegal conduct—expression that receives no free speech protection.” The state says that the Communications Clause does not prohibit Smith from expressing her views; it only prohibits her from advertising that she will deny equal access to her services.

The government weighed in as amicus to support the state. It makes substantially similar arguments.

Significance

If this case seems familiar, that’s because it is. Ever since states started to recognize same-sex marriages, wedding-service providers have challenged state antidiscrimination laws as violating their rights to free exercise of religion and free speech. The Court famously ruled in one of these cases just four years ago. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 (U.S.)__ (2018), the Court held that the Colorado Civil Rights Commission’s application of CADA—the same CADA that is at issue in this case—violated a cake baker’s free-exercise right to refuse to bake a cake for a same-sex wedding. The Court held that some of the commissioners’ statements reflected anti-religious animus against the cake baker, and therefore the Commission’s ruling against the cake baker violated the Free Exercise Clause.

This case is the fully anticipated follow-up to Masterpiece. But unlike Masterpiece, this case comes to the Court as a free-speech case. (The cake baker in Masterpiece also raised a free-speech claim, but the Court did not take it up.) It thus gives the Court yet another chance to test individual constitutional rights against a state’s antidiscrimination laws, albeit under a different doctrine. 

As a free-speech case, 303 Creative will force the Court to navigate some distinctive landmines with roundly discredited historical antecedents. For example, Smith’s proposed statement echoes and amplifies earlier statements by many commercial establishments that they will not serve individuals of a particular race, ethnicity, or nationality. Similarly, Smith’s proposed exception from antidiscrimination laws echoes and amplifies earlier statements by many commercial establishments and individuals that they have a free-speech or free-association right to discriminate, antidiscrimination laws notwithstanding.

Smith tries to provide the Court with a road map through these landmines. She does this by focusing narrowly on her work as an “artist” with a creative message (and not just an ordinary business), who proposes to work in a particular area, weddings, where views can be strong and mixed. It’s not at all clear that Smith’s road map actually dodges the landmines, though. As the state contends, her efforts to narrow her case and distinguish her work may simply create confusion and uncertainty as to the application of antidiscrimination law. 

This could mean that any ruling for Smith would open the door wide for other exemptions from antidiscrimination laws. For example, even a narrow ruling for Smith could invite other individuals and businesses to cast themselves as “artists,” or define their work as serving a particular market that is inextricably tied up with speech. (It’s easy to see how any variety of individuals and businesses could lodge these claims.) It could also invite individuals and businesses to seek exemptions from antidiscrimination laws for those discredited historical practices, mentioned above. Given the nature of this case (in contrast to Masterpiece, where there was a record of enforcement), there may be no obvious way for the Court to rule for Smith while not effectively drilling a tunnel through antidiscrimination laws.

One final observation. The Court’s jurisprudence in this area—testing First Amendment rights against antidiscrimination laws—seems to treat laws protecting against LGBTQ+ discrimination less favorably than it treats laws protecting against other kinds of discrimination. The Court doesn’t specifically acknowledge this, however, much less provide a principled reason for the difference. 

If the Court rules for Smith, it may have to say that quiet part out loud. In other words, it may have to explain why free speech protects Smith’s statements that she won’t create websites for same-sex weddings, even if free speech would not protect her statements that she won’t create websites for, say, Black weddings. Any attempt to explain this difference could prove exceedingly embarrassing (and uncomfortably revealing) for the Court. Yet a ruling for Smith without this explanation will simply invite the next inevitable case, testing whether free speech protects a business’s announcement that they will not serve Black people.

ATTORNEYS FOR THE PARTIES

For Petitioners 303 Creative LLC, et al.(Kristen Kellie Waggoner, 202.393.8690)

For Respondents Aubrey Elenis, et al.(Eric Reuel Olson, 720.508.6548)

AMICUS BRIEFS

In Support of Petitioners 303 Creative LLC, et al.

• 15 Family Policy Organizations (David Austin French, 931.446.7572)
• Arizona, Nebraska, et al. (Michael Shawn Catlett, 602.542.7751)
• Aaron and Melissa Klein (Kelly J. Shackelford, 972.941.4444)
• Alabama Center for Law and Liberty (Matthew James Clark, 256.510.1828)
• Americans for Prosperity Foundation (Cynthia Fleming Crawford, 571.329.2227)
• Association of Certified Biblical Counselors Inc. (Michael Steven Overing, 626.564.8600)
• Becket Fund for Religious Liberty (Eric Christopher Rassbach, 202.955.0095)
• C12 Group, Christian Employers Alliance, and Pinnacle Forum (Tim Newton, 803.454.1242)
  
• Catholic League for Religious and Civil Rights (Jonathan Philip Lienhard, 540.341.8808)
• CatholicVote.org Education Fund (Scott William Gaylord, 336.279.9331)
• Center for Religious Expression (Nathan W. Kellum, 901.684.5485)
• Christian Family Coalition (CFC) Florida, Inc. (Dennis Grossman, 516.466.6690)
• Christian Legal Society and Free Speech Advocates (Walter M. Weber, 502.549.5454)
• Church of Jesus Christ of Latter-day Saints, et al. (Richard Shawn Gunnarson, 801.323.5907)
• Claremont Institute's Center for Constitutional Jurisprudence (Anthony Thomas Caso, 916.601.1916)
• Colorado State Legislators (William Wagner, 517.322.3207)
  
• Concerned Women for America (Steven Werner Fitschen, 757.463.6133)
• Council for Christian Colleges and Universities, the Association for Biblical Higher Education, and Several Individual Religious Colleges and Universities (Gene Clayton Schaerr, 202.787.1060)
• Ethics and Public Policy Center and African American and Civil Rights Organizations (Jeffrey Michael Trissell, 858.759.9930)
• Family Research Council (Jonathan Radford Whitehead, 816.398.8305)
• First Amendment Scholars (Kenneth Clark Daines, 540.341.8808)
• Freedom and Justice Foundation, Inc. (David Charles McGrail, 646.285.8476)
• Institute for Faith and Family and Jewish Coalition for Religious Liberty (Deborah Dewart, 910.326.4554)
• Jewish Coalition for Religious Liberty (Howard Nathan Slugh, 954.328.9461)
  
• Law and Economics Scholars (Sean Paul Gates, 626.508.1715)
• Legal Scholar Adam J. Macleod (Jeffrey A. Shafer, 513.577.7380)
• Liberty Counsel (Mathew D. Staver, 407.875.1776)
• Life Legal Defense Foundation and Bioethics Defense Fund (Catherine Wynne Short, 707.224.6675)
• Lonang Institute (Kerry Lee Morgan, 734.281.7100)
• Mark Janus, the National Institute of Family and Life Advocates, Care Net, and Heartbeat International, Inc. (Jeffrey Michael Schwab, 312.637.2280)
• Mountain States Legal Foundation (William E. Trachman, 303.292.2021)
• Multimedia Production Professionals (John Clay Sullivan, 469.523.1351)
  
• National Association of Evangelicals, et al. (Frederick W. Claybrook Jr., 202.250.3833)
• Professor Christopher R. Green (Christopher Raymond Green, 662.550.9836)
• Professor Dale Carpenter, Prof. Eugene Volokh, Ilya Shapiro, American Unity Fund, and Hamilton Lincoln Law Institute (Eugene Volokh, 310.206.3926)
• Public Advocate of the United States, et al. (William Jeffrey Olson, 703.356.5070)
• Robert P. George (Edward Mark Wenger, 202.737.8808)
• Scholars of Family and Sexuality (Dean Robert Broyles, 760.747.4529)
• Thomas More Law Center (Erin Elizabeth Mersino, 734.827.2001)
• Tyndale House Publishers; Peachtree Publishing Services, LLC; the Foundry Publishing; Harvest House Publishers, Inc.; Urban Ministries, Inc.; Whitaker House; the Moody Bible Institute of Chicago; Warner Press, Inc. (Christopher Ernest Mills, 843.606.0640)
  
• United States Conference of Catholic Bishops, Colorado Catholic Conference, the General Council of the Assemblies of God, the General Conference of Seventh-day Adventists, the Billy Graham Evangelistic Association, and Samaritan’s Purse (Eric Nieuwenhuis Kniffin, 719.386.3017)
• United States Senators and Representatives (John Michael Connolly, 703.243.9423)
  
• Walk for Life West Coast, Arizona Life Coalition, and Coalition for Life of Iowa (Samuel David Green, 661.524.5770)
• Young America’s Foundation (David H. Thompson, 202.220.9600) 

In Support of Respondents Aubrey Elenis, et al.

• 27+ Lay Roman Catholics (James K. Riley, 845.653.1722)
• 30 Religious, Civil Rights, and Grassroots Organizations (Jessica Lynn Ellsworth, 202.637.5886)
  
• 137 Members of Congress (Peter T. Barbur, 212.474.1000)
• Adventist Forum, et al. (Juan Otoniel Perla, 202.452.7373)
  
• American Bar Association (Donald B. Verrilli Jr., 202.220.1101)
• American Civil Liberties Union and American Civil Liberties Union of Colorado (David D. Cole, 212.549.2611)
  
• American Psychological Association, National Association of Social Workers, and Colorado Psychological Association (Tassity S. Johnson, 202.639.6000)
• First Amendment Scholars (Six) (Meaghan Elizabeth McLaine VerGow, 202.383.5300)
  
• First Amendment Scholars (Eight) (Brianne Jenna Gorod, 202.296.6889)
• Former U.S. Representative Anthony (“Tony”) Coelho, et al. (Sanford Jay Rosen, 415.433.6830)
  
• Freedom from Religion Foundation, Center for Inquiry, American Humanist Association, and American Atheists (Patrick C. Elliott, 608.256.8900)
• GLBTQ Legal Advocates & Defenders, the Human Rights Campaign, Lambda Legal Defense and Education Fund, Inc., the National Center for Lesbian Rights, and the National LGBTQ Task Force (Mary L. Bonauto, 617.426.1350)
  
• Ilan H. Meyer, PhD and Other Social Scientists and Legal Scholars (Stephen Blake Kinnaird, 202.551.1842)
• Lawyers’ Committee for Civil Rights Under Law, et al. (Sarah Patricia Hogarth, 202.756.8354)
  
• Massachusetts, et al. (Elizabeth Napier Dewar, 617.963.2204)
• Local Government and Mayors (Julie H. Wilensky, 415.554.4274)
  
• Modern Military Association of America and Minority Veterans of America (Michael Evan Bern, 202.637.2200)
• NAACP Legal Defense & Educational Fund, Inc. (Samuel Spital, 212.965.2200)
  
• National League of Cities, et al. (Aileen Marie McGrath, 415.765.9553)
• National Women’s Law Center, et al. (Megan Louise Rodgers, 202.662.6000)
  
• New York State Bar Association (Sherry Levin Wallach, 518.463.3200)
• Public Accommodations Law Scholars (Joshua Adam Matz, 929.294.2537)
  
• Public Citizen (Scott Lawrence Nelson, 202.588.1000)
• Scholars of Behavioral Science and Economics (Josephine Kendra Petrick, 415.777.3200)
  
• Tanenbaum Center for Interreligious Understanding (Robert John Ward, 212.756.2000)
• Tobias Barrington Wolff (Eric Alan Stone, 212.373.3326)
  
• United States (Elizabeth B. Prelogar, Solicitor General, 202.514.2217)
• Western Jurisdiction of the United Methodist Church, et al. (Roy T. Englert Jr., 202.775.4503) 

In Support of Neither Party

• Creative Professionals and George and Maxine Maynard (Miles Edward Coleman, 864.373.2352)
  
• David Boyle (David Christopher Boyle, 734.904.6132)
• Professor Kent Greenfield (Daniel Adam Rubens, 212.506.3679)
  
• Website and Graphic Designers (William L. Esser IV, 704.372.9000)