Does a public accommodation law violate the Free Speech Clause of the First Amendment when it compels an artist to create custom designs that go against her beliefs?
This case asks the Supreme Court to balance public accommodation anti-discrimination laws and First Amendment rights. The Colorado Anti-Discrimination Act (“CADA”) limits a public accommodation’s ability to refuse services to a customer based on their identity, such as sexual orientation. 303 Creative LLC and its owner Lorie Smith argue that CADA violates their First Amendment rights to free artistic expression and religious belief. Respondent Aubrey Elenis, Director of the Colorado Civil Rights Division, counters that CADA regulates discriminatory commerce, not speech, and thus does not violate 303 Creative LLC’s First Amendment rights. The outcome of this case has heavy implications for LGBTQ+ rights, freedom of speech and religion, and creative expression.
Questions as Framed for the Court by the Parties
Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.
Colorado's Anti-Discrimination Act (“CADA”) limits a place of public accommodation’s ability to refuse services to a customer based on their identity. 303 Creative LLC v. Elenis at 2. Under CADA, a place of public accommodation includes “any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public.” Id. In particular, the Accommodation Clause prevents a public accommodation from “directly or indirectly” refusing services “to an individual or a group” on account of their sexual orientation. Id. CADA’s Communication Clause prevents a public accommodation from “directly or indirectly” publishing a communication that suggests that their full range of “goods, services, facilities, privileges, advantages, or accommodations” will be refused to a customer on account of their sexual orientation. Id.
Petitioner 303 Creative LLC (“303 Creative”) is a for-profit, graphic and website design company owned by Petitioner Lorie Smith (“Smith”), its founder and sole member-owner. Id. at 4. 303 Creative does not currently offer wedding-related services, but Smith intends to do so in the future. Id. Smith is willing to work with all people regardless of their sexual orientation and is also generally willing to create designs or websites for LGBTQ+ customers. Id. However, Smith genuinely believes that same-sex marriages conflict with God’s will. Id. Keeping in line with her religious beliefs, Smith does not plan on offering wedding-related services for same-sex weddings, regardless of who requests the service. Id.
Smith intends to publish a statement on 303 Creative’s business website explaining Smith’s religious objections to same-sex marriage. Id. Smith has not yet posted the proposed statement, nor does 303 Creative currently offer wedding-related services, because Smith does not wish to violate CADA. Id. at 6. Smith brought a pre-enforcement challenge to CADA in the United States District Court for the District of Colorado, alleging that its Accommodation and Communication Clauses violate the Free Speech and Free Exercise Clauses of the First Amendment. Id. Respondent Aubrey Elenis, Director of the Colorado Civil Rights Division (“the Director”), moved to dismiss Smith’s complaint. Id.
At a motion hearing, the parties agreed that the case should be resolved through summary judgment, as there is no dispute as to the facts, but only as to the law. After completing summary judgment briefing, the district court found that Smith only established standing to challenge CADA’s Communication Clause, not the Accommodation Clause. Id. Following the Supreme Court’s ruling in Masterpiece Cakeshop, LTD. v. Colorado Civil Rights Commission, the district court denied Smith’s summary judgment motion regarding CADA’s Communication Clause. Id. at 6–7. The district court further ruled that Smith needed to show cause as to why final judgment should not be granted in favor of the Director. Id. at 7.
After additional briefing, the district court ruled in favor of the Director on the motion for summary judgment. Id. Smith timely appealed the district court’s final judgment. Id.
On appeal, the United States Court of Appeals for the Tenth Circuit found that Smith had standing to challenge both the Accommodation Clause and Communication Clause. Brief for Petitioners, 303 Creative LLC and Lorie Smith, at 10. However, the Tenth Circuit ultimately affirmed the district court’s decision granting summary judgment in favor of the Director. Elenis at 47.
The Supreme Court granted Smith certiorari on February 22, 2022. Brief for Petitioners at 1.
REGULATION OF SPEECH OR CONDUCT
Smith argues that the enforcement of CADA against artists like her violates the Free Speech Clause of the First Amendment by compelling her to speak against her beliefs. Brief for Petitioners, 303 Creative LLC and Lorie Smith at 15. Smith contends that, under Hurley v. Irish-American, Gay, Lesbian, and Bisexual Group of Boston, Inc., the Free Speech Clause is violated if the forced accommodation involves a form of expression and the complaining speaker’s own message was affected by the speech they were forced to accommodate. Id. at 17–18. Smith posits that her custom wedding websites exist as pure speech because their individual components, that is, the printed word, pictures, drawings, etc., are forms of expression. Id. at 19. Smith also argues that her websites are expressive in nature because they express the unique moments of a couple’s love story and their plans for their future. Id. Smith contends that her own message is affected by CADA’s Accommodation Clause because it compels her to create speech that she otherwise would not make because it conflicts with her sincerely held religious beliefs. Id. at 20. Smith argues that the Accommodation Clause changes her message by forcing her to create speech celebrating same-sex marriage, which she deeply disagrees with, making the enforcement of CADA against her a constitutional violation. Id. at 23.
Smith further asserts that CADA compels speech, not conduct. Id. at 24. Smith contends that CADA makes speech itself the public accommodation and forces Smith to speak against her beliefs. Id. Smith argues that her websites are pure speech and not commercial conduct that can be regulated in compliance with the First Amendment. Id. at 24–26. Smith maintains that CADA does not regulate speech incidental to conduct, because the Accommodation Clause forces her to speak when she otherwise would remain silent, without any actual regulation of her conduct. Id. at 28. Smith argues that CADA regulates her speech, and not her clients’ speech, because she personally and actively creates, designs, and publishes her websites and designs. Id. at 29.
In response, the Director argues that the Accommodation Clause regulates discriminatory sales practices, not speech. Brief for Respondents, Aubrey Elenis et al. at 12. The Director contends that Smith’s reliance on Hurley is misplaced because Hurley dealt with the unique application of public accommodations law to a private parade organizer’s decision on which messages to include in their parade, not business practices, as is in this case. Id. at 17. The Director argues that the conduct that CADA targets (i.e., selling goods and services to the public) is not a form of expressive conduct. Id. at 20. The Director posits that by enforcing CADA, the state neither seeks to force Smith to recite state messages or speech, nor does it seek to alter or change Smith’s own message. Id at 19. The Director contends that CADA aims at ensuring equal access to public accommodations and leaves the public accommodation free to choose whatever ideologies it wishes to present. Id. The Director asserts that Smith retains control over her services and what she may sell to the public; CADA only affects Smith’s ability to refuse those services and sales to same-sex couples that she would offer to heterosexual couples. Id. 19–20.
The Director further maintains that the Accommodation Clause focuses only on commercial conduct and is triggered once someone decides to offer services to the public, regardless of what those services are. Id. The Director argues that several Supreme Court decisions have made clear that public accommodations law can regulate conduct when it mandates equal access to goods and services, “even if the businesses engage in activities protected by the First Amendment.” Id. at 13. The Director posits that requiring businesses to comply with equal access does not turn a regulation of conduct into a burden on their expression, even if those businesses provide custom services. Id. at 14.
REGULATION OF CONTENT AND VIEWPOINT
Smith argues that not only does CADA compel speech, but it also does so based on the speaker’s content and viewpoint. Brief for Petitioners at 31. Smith contends that the Accommodation Clause forces her to create websites that celebrate same-sex marriage, which necessarily alters the content of her speech. Id. at 31–32. Smith posits that her choice to discuss a specific topic, namely opposite-sex marriage, serves as a trigger for the enforcement of CADA against her, and therefore CADA selectively penalizes some content. Id. Smith argues that CADA only grants access to her accommodation to those who disagree with the message she wishes to express, further targeting her viewpoint. Id. at 33. Smith maintains that the Communication Clause also regulates her speech based on content and viewpoint, because it only applies to speech on certain topics. Id. at 34.
The Director counters that Smith may create websites and designs expressing whatever message she wants to communicate; all that the Accommodation Clause requires is that she offers her services to the public regardless of her customer’s sexual orientation. Brief for Respondents at 15. The Director maintains that CADA leaves the content of Smith’s goods and services unregulated and completely within her control because she may choose the content and design of her websites without interference. Id. The Director also argues that the Communication Clause prohibits solely commercial speech that facilitates illegal discrimination. Id. at 44. The Director asserts that the Communication Clause does not prevent Smith from expressing her opposition to same-sex marriage—instead, CADA simply regulates speech that denies equal service, in violation of the law, based on a customer’s protected characteristic. Id. at 44–45. The Director contends that Smith is still able to express her beliefs concerning same-sex marriage while complying with her legal obligation to provide goods and services equally. Id. at 45.
STANDARD OF REVIEW AND STATE INTERESTS
Smith argues that because CADA compels speech and discriminates based on content and viewpoint, thus implicating a fundamental right, the law must satisfy strict scrutiny. Brief for Petitioners at 36. To pass strict scrutiny, Smith contends that the Director must prove that enforcing CADA against artists like Smith furthers a compelling government interest, and the enforcement is narrowly tailored to achieving that interest. Id. Smith maintains that the Director’s interests in eliminating discrimination and maintaining access to goods and services are too broad to serve as compelling interests. Id. at 37. Smith argues that the Director cannot show that Smith’s speech will undermine the state’s interest in combating discrimination because Smith “does not discriminate against anyone” and “will happily serve everyone” regardless of their sexual orientation. Id. Smith argues that allowing her to speak does not affect access to goods and services, because there are many designers in Colorado that will convey the messages that Smith refuses to convey. Id.
Smith further posits that the Director has multiple alternative options to achieve their interests, which proves that the enforcement of CADA is not narrowly tailored to that end. Id. at 47. Smith maintains that the Director could enforce CADA so as to allow speakers who serve all people to refuse certain projects based on their message, carve out textual exemptions for artists who decline projects based on their message, or narrow the definition of public accommodation under CADA. Id. at 47–48. Smith argues that the Director fails to show why less-intrusive methods such as these will fail and only speech compulsion will succeed. Id. at 49.
The Director responds that the state has a compelling interest in protecting equal access and equal dignity of all customers, which is supported by American history and tradition. Brief for Respondents at 35–36. The Director contends that the state’s interest in ensuring equal access is compelling because the denial of services based on identity has the effect of demoting someone to a second-class citizen. Id. at 39. The Director asserts that there are no less restrictive alternative means available to CADA. Id. at 40. The Director argues that discretionary exemptions suggested by Smith that allow businesses to deny equal access would swallow the state’s interest in providing equal access as a whole. Id. at 41. The Director also argues that Smith failed to show how an exemption to CADA for artists is feasible and that such an exemption has no limiting principle. Id. at 30–31.
The Director further contends that the correct level of scrutiny to apply is intermediate scrutiny because any burden on Smith’s speech is incidental to the Accommodation Clause’s regulation of conduct. Id. at 25. The Director posits that if there is a burden on Smith’s speech, that is simply the effect of CADA, rather than the law’s intent, and therefore intermediate scrutiny is more appropriate. Id. The Director maintains that applying intermediate scrutiny to a law that is not aimed at suppression, but that unintentionally burdens speech, is in line with Supreme Court cases upholding similar public accommodation laws, such as Ward v. Rock Against Racism and United States v. Albertini. Id. at 26.
PRINCIPLES OF FREEDOM UNDER THE FIRST AMENDMENT
Colorado state legislators (“State Legislators”), in support of Smith, argue that forcing individuals to express messages that they disagree with violates the fundamental rule of protection under the First Amendment. Brief of Amici Curiae Colorado State Legislators (“State Legislators”), in Support of Petitioners at 11. The State Legislators argue that nondiscriminatory laws such as CADA impose speech conditions that substantially interfere with speakers’ autonomy and freedom of speech. Id. at 9. The State Legislators further contend that enforcing such laws often weaponizes state action to eliminate a constitutional constraint, the Free Speech Clause. Id. at 12.
Six First Amendment Scholars (“Scholars”), in support of the Director, counter that allowing expressive freedom to supersede other laws of general applicability would jeopardize the very freedom the First Amendment aims to protect. Brief of Amici Curiae First Amendment Scholars (“Scholars”), in Support of Respondent at 18. The Scholars contend that allowing discrimination on the basis of the First Amendment in the commercial context inevitably permits subjective invalidation of general laws. Id. at 19. The Scholars argue that such distorted effects dilute free speech protection and weaken the First Amendment’s goal of “furthering the free and robust exchange of ideas” by creating unacceptable applications of the rule. Id.
SOCIETAL EFFECT OF PUBLIC ACCOMMODATION LAWS
The State Legislators, in support of Smith, argue that recognizing a compelling state interest in enforcing CADA would allow the government to subjectively infringe on speakers’ artistic expression. Brief of State Legislators at 16. The State Legislators claim that the government wielding its enforcing power will inevitably lead to hostility and inequity toward religious viewpoints and identities. Id. at 18. State Legislators further purport that government action censuring speech protected under the First Amendment not only facilitate policies contrary to speakers’ conscience but also to their personal identities. Id. at 20.
Professor Dale Carpenter and others (“Professor Carpenter”), in support of Smith, argues that the government may ensure equal access to goods and services even if the Court recognizes Smith’s First Amendment right to decline to create a custom service. Brief of Amici Curiae Prof. Dale Carpenter et al. (“Professor Carpenter”), in Support of Petitioners at 18. Professor Carpenter distinguishes the bulk of goods and services, which people shall generally have access to, from expressive goods and services such as Smith’s, which he contends are protected under the First Amendment. Id. Professor Carpenter further notes that, although the Court has previously recognized a state interest in preventing entities from leveraging the monopoly of their services to silence other speakers, merely characterizing a business as a monopoly is not sufficient to deny that business protections under the First Amendment. Id. at 20.
The National Women’s Law Center (“NWLC”) and thirty-five additional organizations, in support of the Director, counter that public accommodation laws such as CADA guard against real-world harms caused by excluding certain groups from public accommodations. Brief of Amici Curiae The National Women’s Law Center et al. (“NWLC”), in Support of Respondent at 12. NWLC argues that these laws reflect society’s recognition of discrimination and perpetuated economic and social inequality. Id. at 6. NWLC notes that discriminating against people in public accommodations stigmatizes them and deprives them of individual dignity. Id. at 13.
Local governments and mayors (collectively “Local Governments”), in support of the Director, claim that enforcing CADA allows local communities to become diverse and pluralistic. Brief of Amici Curiae Local Governments and Mayors (“Local Governments”), in Support of Respondent at 5. Local Governments contend that discrimination not only impedes individuals who face discrimination from accessing goods and services, but also harms their well-being and economic security. Id. at 6. Local Governments argue that protections under CADA ensure an equal opportunity to access services and earn a living, thereby allowing individuals who are discriminated against to fully participate in public life. Id. at 4. Furthermore, Local Governments argue that CADA would benefit society as a whole by improving business performance and the economy due to increased economic activities of the individuals who experience discrimination. Id. at 14.
The authors would like to thank Professor Nelson Tebbe for his guidance and insights into this case.
- Peter Brown, Can a Web Designer Refuse to Build a Gay Marriage Website?, New York Law Journal (Nov. 7, 2022).
- Samuel E. Ferguson, Mixed Messaging: Previewing 303 Creative and its Place in Current Free Speech Jurisprudence, Minnesota Law Review (Nov. 1, 2022).
- Christopher Jackson, Supreme Court Poised to Issue Blockbuster Decision on Free Speech, JD Supra (Nov. 17, 2022).
- Michael Smith, Column: Supreme Court Case a Unique Conflict of First, 14th Amendments, The Pilot (Nov. 5, 2022).