On June 30, 2023, the Supreme Court rendered its long-awaited decision in 303 Creative LLC v. Elenis, holding that the First Amendment prohibits Colorado from forcing a website designer to create expressive designs that would conflict with her religious beliefs.

Background

Under the Colorado Anti-Discrimination Act (“CADA”), all “public accommodations” are prohibited from denying the “full and equal enjoyment” of its goods and services and may not refuse to serve a customer based on their race, gender, age, sexual orientation, or any other protected characteristics. In addition, “public accommodation” is broadly defined to include “almost every public-facing business in the State.” Additionally, unlawful discrimination under CADA not only includes refusing to provide goods or services on equal terms, but also publishing any written communication that states or implies that an individual’s patronage is unwelcome because of a protected characteristic.

The Petitioner in this case, Lorie Smith (“Smith”), is the founder and owner of 303 Creative LLC, a graphic design company that sells graphic and website designs. Prior to the lawsuit, Smith decided to expand her offerings to provide services for couples seeking wedding websites. However, due to her religious beliefs, she was opposed to producing or selling websites for same-sex marriages and wanted to post a notice on her website to inform potential customers that she was not willing to create websites promoting same-sex marriages. However, Smith worried that CADA would prohibit her from doing so and instead “force her to convey messages inconsistent with her belief that marriage should be reserved for unions between one man and one woman.”

As a result, Smith sued the Director of the Colorado Civil Rights Division in federal district court, seeking an injunction to prevent Colorado from forcing her to create wedding websites for same-sex couples. However, the district court ruled against Smith, and the U.S. Court of Appeals for the Tenth Circuit upheld the lower court decision on appeal. Undeterred, Smith petitioned the U.S. Supreme Court for a writ of certiorari to hear her case. The question brought before the Court was whether CADA violated the Free Speech Clause of the First Amendment by compelling Smith, an artist, to speak or stay silent.

Holding

In the 6-3 decision, the Supreme Court held that Smith’s creation of wedding websites constituted “pure speech” under the First Amendment. The Court made it clear that the decision “flows directly from the parties’ stipulations” that every website Smith created was “customized”. The Court also held that because Smith was prepared to serve all potential customers as long as she was not required to provide customized website designs that conflicted with her religious beliefs, if Colorado compelled Smith to create a website depicting designs that conflict with her religious beliefs, it would be compelling her to speak a “message” with which she disagreed. Relying on the First Amendment, the Court concluded that the government cannot require a person or business to express a “message” against their beliefs. While recognizing public accommodations laws play a “vital role” in the protection of civil rights, the Court held that CADA could not constitutionally require Smith to provide website designs celebrating same-sex weddings as “no public accommodations law is immune from the demands of the Constitution.” As such, CADA could not be used to deny speakers the right to choose the content of their own message.

Implications for Employers

In the wake of 303 Creative, there will likely be an increase of cases testing the limits of the definition of “creative works” that is central to this decision, but for now it remains to be seen if 303 Creative will provide a foundation to limit state action to regulate business. While employees cannot bring First Amendment claims against private employers, some employees relying on 303 Creative may still attempt to assert their right to free speech as a basis for objecting to state civil rights laws or workplace policies promoting diversity, equity, and inclusion. Nonetheless, private employers must still comply with all applicable federal, state, and local employment non-discrimination laws.

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