This Report summarizes an opinion issued on February 24, 2022 (Part I); and cases granted review on February 7, 18, and 22, 2022 (Part II).
Opinion: 303 Creative LLC v. Elenis, 21-476
303 Creative LLC v. Elenis, 21-476. This case examines a question left undecided by the Court four years ago in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018): whether a public accommodation statute that compels a website designer to create a website celebrating a same-sex wedding violates the designer’s free speech rights. Petitioner Lorie Smith is the sole member of 303 Creative, through which she designs original, customized websites and graphics for her clients. Smith is willing to work with all people regardless of sexual orientation. But Smith does not intend to offer website services for same-sex weddings because she opposes sex-same marriage as part of her faith. Smith also intends to publish a statement explaining her religious objections to creating websites that celebrate same-sex marriage. Colorado’s Anti-Discrimination Act (CADA) restricts a public accommodation’s ability to refuse to provide services based on a customer’s identity. Under CADA’s “Accommodation Clause,” a public accommodation may not refuse to serve an individual or group “because of . . . sexual orientation.” And CADA’s “Communication Clause” prohibits a public accommodation from publishing any “communication” that indicates that its goods and/or services “will be refused[,] or that an individual’s patronage . . . is unwelcome, objectionable, unacceptable, or undesirable because of . . . sexual orientation[.]”
Smith brought a pre-enforcement suit challenging both clauses of CADA as violative of her free speech and free exercise rights under the First Amendment. The district court ruled for the state, and the Tenth Circuit affirmed. 6 F.4th 1160. With respect to her free speech claim, the Tenth Circuit first recognized that Smith’s wedding websites were “pure speech.” The Tenth Circuit then acknowledged that the Accommodation Clause compelled Smith to speak by forcing her to create custom websites that, in light of her faith, she would not otherwise create. The Tenth Circuit also held that the Accommodation Clause was a content-based restriction, because its “very purpose” and effect were to excise certain ideas or viewpoints from the public dialogue. Strict scrutiny therefore applied. The Tenth Circuit held, however, that the Accommodation Clause survived strict scrutiny review, concluding that the clause was narrowly tailored to Colorado’s compelling governmental interest in ensuring “equal access to publicly available goods and services.” In doing so, the Tenth Circuit discounted the notion that those seeking same-sex wedding website services would have other options in the marketplace. Instead, the Tenth Circuit characterized Smith’s (and thus all artists’) services as “unique” and “inherently not fungible,” such that any deprivation of those services to same-sex couples would consequently relegate a “disfavored group” to a “narrower selection” of services. The court then concluded that the Communication Clause was constitutional because it simply prohibited the expression of an intent to do something illegal. The Tenth Circuit also rejected Smith’s free exercise claim, holding that, under Employment Division v. Smith, 494 U.S. 872 (1990), CADA was a neutral law of general applicability.
Although Smith sought certiorari on both her free speech and free exercise claims, the Court granted certiorari only as to her free speech claim. In seeking reversal on that claim, Smith asks the Court to resolve a split over how to address the tension between free speech rights and public accommodation laws that prohibit discrimination on the grounds of sexual orientation. Smith agrees with the Tenth Circuit that strict scrutiny is the applicable standard given that (1) requiring her to create websites that she would not otherwise create constitutes compelled speech, and (2) CADA’s restriction on speech concerning sexual orientation is a restriction based on content. Smith, however, disagrees that allowing equal access to goods and services is, as the Tenth Circuit held, a sufficiently compelling reason to permit such restrictions. She maintains that the Court “consistently rejects compelled speech under strict scrutiny” and “condemns governmental attempts to target certain ideas.” Smith asks the Court to “harmonize” public accommodation law and the First Amendment by “recognizing the sharp line between status discrimination on the one hand, and message-based or participation declinations on the other.”
Colorado responds that CADA “is a straightforward regulation of commercial conduct. Like other public accommodations laws that apply to companies providing commercial goods and services, it satisfies constitutional requirements. Additionally, even if a business offers expressive products and services, the message communicated by those products and services is attributable to the customer, not the business.” As to the Communications Clause, the state agrees with the Tenth Circuit that “prohibiting companies from displaying what would amount to ‘Straight Couples Only’ messages is permissible because it restricts speech that proposes illegal activity and is therefore unprotected by the First Amendment.” Finally, the state maintains that even if strict scrutiny applies, CADA satisfies it because the law is narrowly tailored to achieve the compelling interest of “[e]liminating ‘stigmatizing injury, and the denial of equal opportunities that accompanies it.’”
[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]