303 Creative LLC v. Elenis: A First Amendment Analysis

In a much-watched case, 303 Creative LLC v. Elenis, the Supreme Court in June 2023 ruled that a Christian website designer cannot be required to create wedding websites for same-sex couples. The designer said that doing so would violate her religious beliefs.

Fans of the decision saw it as protecting the free speech provisions of the First Amendment, affirming that the government cannot force a person to speak, which in this case meant creating a web page.

Others expressed concern that the decision could open the door to business owners finding ways to discriminate because the court did not define what business activities would constitute expression.

The 303 Creative LLC v. Elenis case: Religion and speech vs. LGBTQ+ rights?

Lorie Smith, owner of Colorado-based website design company 303 Creative LLC, considered designing wedding websites, but she didn’t want to create sites for same-sex weddings because that would run contrary to her religious belief about marriage. This might run afoul of the Colorado Anti-Discrimination Act, which prevents denying service at businesses on the basis of, among other characteristics, sexual orientation. But Smith strongly believed that being forced to create wedding websites for same-sex clients violated her First Amendment protection from the government requiring her to speak.

Smith filed a federal lawsuit and, eventually, 303 Creative LLC v. Elenis proved to be one of the most contentious and closely watched cases of the 2022-2023 Supreme Court term. It was often framed as a fight for the future of speech and religious rights against the future of anti-discrimination laws and LGBTQ+ rights:

• If Smith lost, businesses would have to serve all customers without regard to their owners’ core beliefs.
• If Smith won, businesses could refuse service to someone based solely on the customer’s sexual orientation – or potentially race, color, national origin, religion, sex, age or disability.

The 303 Creative LLC v. Elenis ruling: Business owner not required to speak

In a 6-3 decision, the Supreme Court ruled in favor of Smith – but in a narrow way, with a clear statement that the decision was not to be taken as a broad license to discriminate.

The court framed the case as one in which Colorado wanted to compel Smith to engage in speech she doesn’t believe. It noted that the parties agreed that her websites would be original, expressive creations designed to convey a particular message. It cited decades of precedent 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.’”

In Smith’s case, designing websites is afforded the same protection as books, movies, paintings or anything she says aloud. Even though she is hired by a client who pays her and with whom she may consult, the final product is still “her speech.”

The ruling specifically affirmed the “vital role public accommodations laws play in realizing the civil rights of all Americans” but said that these laws must give way to the constitutional protection of free speech. Otherwise, “the better the artist, the finer the writer, the more unique his talent, the more easily his voice could be conscripted to disseminate the government’s preferred messages.”

It isn’t clear how the ruling will be applied in the future.

The future following 303 Creative LLC v. Elenis: Questions remain about when business is speech

The opinion was intentionally narrow. It is a strong affirmation of Smith’s First Amendment rights in her case. However, it doesn’t offer a lot of guidance for the dozens of similar cases that are already winding their way through lower courts or conflicts that have already arisen in the wake of these decisions, such as:

• What products and services qualify as “expressive”?
• How should courts make that determination? Is it in the eye of the creator or based on how a “reasonable person” might see it?
• Is there any way to test the sincerity of a business owner’s professed beliefs to make sure they are not simply discriminating in the name of free speech?

Some answers are straightforward. As identified in the opinion, an LGBTQ+ website designer could refuse to create a client website that advocates against same-sex marriage.

Similarly, as Justice Neil Gorsuch said, “There are no doubt innumerable goods and services that no one could argue implicate the First Amendment.” For instance, just days after 303 Creative was decided, a hair salon owner in Traverse City, Mich., said she would not serve transgender and queer people. Though she may argue her work is expressive creation, a simple haircut is not a message that promotes a transgender or queer identity, so this would be discrimination. But what if she were asked to color a rainbow into someone’s hair because the client wants to visibly support LGBTQ+ rights?

And what about a baker like Jack Phillips of Masterpiece Cakeshop (who has already secured a victory in the Supreme Court on mainly procedural grounds)? Based on this ruling, he would not have to create customized cakes with messages celebrating same-sex weddings. But when does baking become “expressive”? What about frosting a cake a certain way – like with rainbow frosting – but with no written message?

The decision in 303 Creative LLC v. Elenis demonstrates there is a limit to the First Amendment in these cases but doesn’t precisely say where.

Kevin Goldberg is a First Amendment specialist for the Freedom Forum. He can be reached at [email protected].