This story by Lindsey Toomer appeared on Colorado Newsline on December 6, 2022.
The U.S. Supreme Court on Monday heard oral arguments in the 303 Creative v. Elenis case, which involves a Colorado website designer who believes her First Amendment right to free speech is violated by Colorado’s Anti-Discrimination Act.
Plaintiff Lorie Smith, who owns 303 Creative, said the Colorado law preventing discrimination based on sexual orientation violates her right to free speech because, based on her religion, she doesn’t believe in same-sex marriage and therefore does not want to create wedding websites for same-sex couples. Aubrey Elenis, who is named as a defendant, is the director of the Colorado Civil Rights Division. The Colorado solicitor general argued on the state’s behalf.
One of the key debates in the case is whether the creation of a website is considered a form of speech or a service. Smith argues it’s speech, while the defendants argue it is a service and public accommodation laws should therefore apply. Essentially, Smith’s argument is that the anti-discrimination laws constitute compelled speech, forcing her to create a website against her personal beliefs. The court is not making decisions related to the First Amendment’s freedom of religion clause.
Many watching the case have a sense of deja vu, especially Coloradans familiar with Masterpiece Cakeshop v. Colorado Civil Rights Commission, which involved a cake shop owner who denied a same-sex couple a wedding cake. That case also went before the Supreme Court. Another debate that came up in oral arguments Monday related to how creating a cake or other such service differs from creating a website.
Colorado Attorney General Phil Weiser said in a news conference following opening arguments that if someone opens their doors to the public, they must accommodate all comers, and he reiterated Colorado’s number of protected classifications, including race, gender and sexual orientation. He said categorical exemptions like the one sought in the 303 Creative case deprive a group of people access to the marketplace.
“You can’t deny someone access to a product or service based on who they are,” Weiser said in the news conference.
Weiser reiterated Colorado’s reliance on the Rumsfeld v. Forum for Academic and Institutional Rights case, which said schools could not selectively exclude military recruiters from their schools. He also echoed concerns from some justices that if an exemption for Smith is permitted it could “easily spread to cover a range of other scenarios.”
“In the argument, it was clear that the justices understood the gravity of this case, both the importance of protecting the principle that we’re advocating for — a principle that has roots in the 1860s in Colorado where we first adopted a public accommodations requirement,” Weiser said.
During oral arguments, justices presented Smith’s attorney, Kristen Waggoner, with a variety of hypotheticals while going through the plaintiff’s arguments, with Waggoner repeatedly emphasizing Smith’s belief that same-sex marriage is false and that she should not be forced to create speech against her beliefs and the First Amendment. Waggoner argued that a website design company is different from another service like a restaurant, caterer or tailor because the website designer is creating speech.
Justice Sonya Sotomayer asked Colorado Solicitor General Eric Olson, who argued for the defense, to verify that, if the court ruled in Smith’s favor, it would be the first time in the court’s history it would allow a business to refuse a customer service based on their race, sex, religion or sexual orientation. Olson responded, “Yes.”
“Granting such a license to discriminate would empower all businesses that offer what they believe to be expressive services, from architects to photographers to consultants, to refuse service to customers because of their disability, sexual orientation, religion or race,” Olson said Monday morning. “The free speech clause exemption the company seeks here is sweeping, because it would apply not just to sincerely held religious beliefs like those of the company and its owner, but also to all sorts of racist, sexist and bigoted views.”
Olson argued that public accommodation laws are of “general applicability that apply to all those operating a trade to the public, they don’t say except those engaged in expressive conduct,” but there isn’t much legal precedent regarding speech in such cases. If a company saw high demand and was unable to render services to everyone, it can make a decision about who to serve and not to serve, Olson said, but that decision can’t be based on a protected characteristic under Colorado statute.
Waggoner was challenged to consider this hypothetical: Two websites are identical, but one promotes a wedding for a heterosexual couple and the other promotes a wedding for a same-sex couple — what’s objectionable speech in one site but not the other? Waggoner argued the two sites would convey different messages, one of which the plaintiff does not believe in. Justice Neil Gorsuch said one can view a website as expressing the maker’s point of view or the couple’s point of view.
“The Pulitzer Prize doesn’t go to the customer or to the subject, it goes to the photographer, and there’s a reason for that,” Waggoner said. “That reason is because you are requiring that artist to speak a message … No one on any side of any debate has to be compelled to express a message that violates their core convictions, because as this court found, it’s demeaning to them.”
One of the cases of precedent cited by both parties Monday is Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, but Justice Ketanji Brown Jackson noted how this case is different, because the Hurley case related to a private entity, not a public business.
Wesier also noted the 303 Creative case is made more complicated because the company has not actually denied any same sex couples a website yet. There is no clear set of facts the court could base its ruling on.
“We’ve not seen this in American law before,” Weiser said. “It is a real risk to see it in this case, and that’s why we’re fighting so hard to defend Colorado civil rights law.”
The Supreme Court won’t issue a final decision on the case until about June.