SCOTUS Rules Website Designer Can Refuse Same-Sex Customers

In 303 Creative LLC v. Elenis, 600 U.S. ____ (2023), a divided U.S. Supreme Court held that the First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees. “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,” Justice Neil Gorsuch wrote on behalf of the six-member majority.

Facts of the Case

Lorie Smith sought to expand her graphic design business, 303 Creative LLC, to include services for couples seeking wedding websites. However, Smith worried that Colorado would use the Colorado Anti-Discrimination Act to compel her—in violation of the First Amendment—to create websites celebrating marriages she does not endorse. To clarify her rights, Smith filed a lawsuit seeking an injunction to prevent the State from forcing her to create websites celebrating marriages that defy her belief that marriage should be reserved to unions between one man and one woman.

CADA prohibits all “public accommodations” from denying “the full and equal enjoyment” of its goods and services to any customer based on his race, creed, disability, sexual orientation, or other statutorily enumerated trait. The law defines “public accommodation” broadly to include almost every public-facing business in the State. Either state officials or private citizens may bring actions to enforce the law, and a variety of penalties can follow any violation.

Before the district court, Smith and the State stipulated to a number of facts: Smith is “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender” and “will gladly create custom graphics and websites” for clients of any sexual orientation; she will not produce content that “contradicts biblical truth” regardless of who orders it; Smith’s belief that marriage is a union between one man and one woman is a sincerely held conviction; Smith provides design services that are “expressive” and her “original, customized” creations “contribut[e] to the overall message” her business conveys “through the websites” it creates; the wedding websites she plans to create “will be expressive in nature,” will be “customized and tailored” through close collaboration with individual couples, and will “express Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage; viewers of Smith’s websites “will know that the websites are her original artwork;” and “[t]here are numerous companies in the State of Colorado and across the nation that offer custom website design services.”

Ultimately, the district court held that Smith was not entitled to the injunction she sought. The Tenth Circuit Court of Appeals affirmed. The appeals court acknowledged that Smith’s “creation of wedding websites is pure speech” and that CADA compels Smith to create speech that she would otherwise refuse. Nonetheless, it determined that CADA does not violate the First Amendment because “enforcing CADA as to Appellants’ unique services is narrowly tailored to Colorado’s interest in ensuring equal access to the commercial marketplace.” The Tenth Circuit further found that the Communication Clause does not violate the Appellants’ Free Speech rights. “As the district court correctly held, Colorado may prohibit speech that promotes unlawful activity, including unlawful discrimination,” the court wrote.

Supreme Court’s Decision

The Supreme Court reversed by a vote of 6-3. According to the Court’s conservative majority, the First Amendment prohibits the state of Colorado from forcing Smith to create expressive designs speaking messages with which she disagrees.

In reaching its decision, the Court relied heavily on First Amendment precedent established in Boy Scouts of America v. Dale,530 U.S. 640 (2000), West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943), andHurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995). In Barnette, the Court held that the State of West Virginia’s efforts to compel schoolchildren to salute the Nation’s flag and recite the Pledge of Allegiance “invad[ed] the sphere of intellect and spirit which it is the purpose of the First Amendment . . . to reserve from all official control.” In Hurley, the Court held that Massachusetts’s public accommodations statute could not be used to force veterans organizing a parade in Boston to include a group of gay, lesbian, and bisexual individuals because the parade was protected speech, and requiring the veterans to include voices they wished to exclude would impermissibly require them to “alter the expressive content of their parade.” Finally, in Boy Scouts of America, when the Boy Scouts sought to exclude assistant scoutmaster James Dale from membership after learning he was gay, the Court found that forcing the Scouts to include Mr. Dale would undoubtedly “interfere with [its] choice not to propound a point of view contrary to its beliefs.”

According to the Court, these cases illustrate that the First Amendment protects “an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply misguided.” Moreover, in each case, the Court found that governments impermissibly compelled speech in violation of the First Amendment when they tried to force speakers to accept a message with which they disagreed.

The majority found that Colorado sought to put Smith to a similar choice. “If she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs, sanctions that may include compulsory participation in ‘remedial . . . training,’ filing periodic compliance reports as officials deem necessary, and paying monetary fines,” Justice Gorsuch wrote. “Under our precedents, that ‘is enough,’ more than enough, to represent an impermissible abridgment of the First Amendment’s right to speak freely.”

In response to Justice Sonia Sotomayor’s strongly worded dissent, Justice Gorsuch emphasized that the case is about expression rather than access to public accommodations. He also highlighted what might happen if the Court adopted the State of Colorado’s approach, writing:

The government could require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would make films or murals for other members of the public with different messages. Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage. Countless other creative professionals, too, could be forced to choose between remaining silent, producing speech that violates their beliefs, or speaking their minds and incurring sanctions for doing so. As our precedents recognize, the First Amendment tolerates none of that.

Dissent

Justice Sotomayor authored a dissent, which was joined by Justices Elena Kagan and Ketanji Brown Jackson. “Time and again businesses and other commercial entities have claimed a constitutional right to discriminate and time and again this court has courageously stood up to those claims,” Justice Sotomayor wrote. “Until today. Today, this court shrinks.”