In 303 Creative LLC, et al v. Aubrey Elenis, et al, 2023 WL 4277208 (U.S. June 30, 2023), the U.S. Supreme Court upheld (6-3) a challenge by a wedding website designer (Lorie Smith) to the (prospective) enforcement of Colorado’s public accommodation discrimination law, as doing so would violate the First Amendment’s Free Speech Clause.
Justice Gorsuch, for the majority, wrote:
Like many States, Colorado has a law forbidding businesses from engaging in discrimination when they sell goods and services to the public. Laws along these lines have done much to secure the civil rights of all Americans. But in this particular case Colorado does not just seek to ensure the sale of goods or services on equal terms. It seeks to use its law to compel an individual to create speech she does not believe. The question we face is whether that course violates the Free Speech Clause of the First Amendment.
In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. In the past, other States in Barnette, Hurley, and Dale have similarly tested the First Amendment’s boundaries by seeking to compel speech they thought vital at the time. But, as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong. Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider unattractive, misguided, or even hurtful. But tolerance, not coercion, is our Nation’s answer. 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. Because Colorado seeks to deny that promise, the judgment is Reversed.
One interesting aspect of this case is that it was not initiated by a person (or couple) who unsuccessfully sought to procure Smith’s services, but rather by Smith herself “[t]o clarify her rights.”
Another key takeaway is that this case involves (a) the application of the First Amendment’s “Free Speech” clause (as opposed to its “Free Exercise” of religion clause) and (b) “expressive content” (here, a website). It is thus unclear whether and to what extent this holding will apply to, for example, non-expressive conduct that is outside the purview of the Free Speech clause.
Specifically, the Court’s holding must be considered in light of the various stipulated facts, namely,
- Ms. Smith is “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender,” and she “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.
- Her belief that marriage is a union between one man and one woman is a sincerely held religious conviction.
- All of the graphic and website design services Ms. Smith provides are “expressive.”
- The websites and graphics Ms. Smith designs are “original, customized” creations that “contribut[e] to the overall messages” her business conveys “through the websites” it creates.
- Just like the other services she provides, the wedding websites Ms. Smith plans to create “will be expressive in nature.”
- Those wedding websites will be “customized and tailored” through close collaboration with individual couples, and they will “express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage.
- Viewers of Ms. Smith’s websites “will know that the websites are [Ms. Smith’s and 303 Creative’s] original artwork.”
- To the extent Ms. Smith may not be able to provide certain services to a potential customer, “[t]here are numerous companies in the State of Colorado and across the nation that offer custom website design services.”
Justice Sotomayor issued a vigorous dissent, joined by Justices Kagan and Jackson.