Many months ago I read an article about a Colorado web designer who wanted to expand her website creation and creative arts business into the world of weddings. Because of her Christian faith she did not want to offer those services to same-sex wedding clients holding that such an action, even a civil one, was against her religious beliefs. Back in December 2022 the case had advanced and arguments were being made before the Supreme Court. The case, 303 Creative LLC v. Elenis was decided last week in favor of the web designer.

Here is what I never got around to posting…

303 Creative LLC v. Elenis

In case you are wondering about the identity of “Elenis,” Aubrey Elenis is the Director of the Colorado Civil Rights Division. The web designer Lori Smith (303 Creative LLC) brought a pre-enforcement challenge against Colorado’s anti-discrimination law. Interestingly the challenge was not about the refusal to offer web design services to LGBTQ people, as she had already completed work for clients identifying as LGBTQ. As she planned to move her web services into weddings, she wanted to include a message on her website stating, in part, that “I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage.”

It is important to note that the wedding website service Smith plans to offer is not the equivalent of available internet-based products such as Joy, The Knot, Zola or Minted.  303 Creative’s work is to promote the couple’s wedding and unique love story in their words and in the words of Ms. Smith – the focus of which will be to celebrate and promote what Ms. Smith understands to be a marriage.  Ms. Smith offers wedding websites celebrating marriages that she endorses, and because of state laws in Colorado she believed she would be subject to enforcement action or prosecution. She concluded that if she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs, sanctions that may include compulsory participation in remedial training, filing periodic compliance reports, and payment of monetary fines.

Smith argues that her intended action of posting the message might have violated two provisions of Colorado law. The first provision (the “Accommodation Clause”) prohibits public accommodations (e.g. a business) from refusing to provide full and equal enjoyment of services to individuals because of those individuals’ protected characteristics, including sexual orientation. The second provision (the “Communication Clause”) prohibits public accommodations from publishing anything indicating that they will refuse full and equal service to individuals because of those individuals’ protected characteristics—including sexual orientation—or indicating that such individuals’ patronage is “unwelcome, objectionable, unacceptable, or undesirable.”

Both Smith and Colorado agree that 303 Creative satisfies Colorado’s definition of a public accommodation. Ms. Smith and the State stipulated to the District Court that Ms. Smith is “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender” and “will gladly create custom graphics and websites” for clients of any sexual orientation; she will not produce content that “contradicts biblical truth” regardless of who orders it.”  In other words, this is not a case of a general refusal to serve LGBTQ people.

Smith argues that Colorado may treat her refusal to provide same-sex wedding websites as violating the statute’s Accommodation Cause if she is providing other wedding websites. She also argues that Colorado may treat the statement she wants to include on her website as a violation of the Communication Clause. The State of Colorado agreed with her conclusions. On these grounds, Smith brought a pre-enforcement challenge against the law. A Colorado district court judge granted summary judgment in Colorado’s favor. Smith appealed to the 10th Circuit Court. For Smith and 303 Creative it was a question of free speech vs. compelled speech.

The first question: did Smith have standing to bring the pre-enforcement challenge? The 10th Circuit concluded that she had standing because she had a credible fear of prosecution given that she intended to discriminate in a way that arguably violated Colorado law and because enjoining enforcement against her in these circumstances would redress that fear. This next part gets into the finer point of the law (for which I am not qualified, but… here goes).

For the purpose of First Amendment assessment, the 10th Circuit held that Smith’s creation of wedding websites and the message she wished to post was pure speech (face-to-face communication, broadcast speech, or written publications) as opposed to expressive conduct (action,  e.g. handing out pamphlets). The court also held that the statute’s accommodation clause would compel Smith to speak through the creation of same-sex wedding websites. The court viewed such compelled speech as a form of content-based restriction because Smith was restricted in making wedding websites for heterosexual couples unless she was also willing to make them for same-sex couples.

Because the court determined that the accommodation clause imposed a content-based restriction on Smith’s speech, the court applied strict scrutiny. This means that there is a compelling governmental interest and the associated law must have narrowly tailored the law to achieve that interest. The court concluded that the accommodation clause satisfied strict scrutiny because the law promoted compelling government interests — “protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace”—and the law was narrowly tailored to meet the interest of ensuring equal access to the commercial marketplace because of the unique nature of Smith’s products and services. The court also held that the communication clause did not violate Smith’s free speech rights because it merely prohibits speech promoting unlawful activity (i.e. unlawful discrimination).

What about the attending religious free exercise claim? For that, the court relied on Employment Division v. Smith, where the Supreme Court held that the free exercise clause did not require the application of strict scrutiny when the law under question is neutral and generally applicable. The 10th Circuit concluded that Smith had not provided evidence that the anti-discrimination law was not neutral or generally applicable, nor had Smith provided evidence that it would not be applied neutrally in the case of her religious beliefs.

The 10th Circuit also concluded that the law was neither vague nor overly broad as applied in Smith’s case and upheld the district court’s summary judgment in favor of Colorado.

The Chief Judge dissented from the majority arguing that the anti-discrimination law would compel Smith’s speech and would impose both content-based and viewpoint-based restrictions on Smith’s speech. He thus agreed with the majority that strict scrutiny must be applied. But he disagreed that the law satisfied strict scrutiny.

The dissent agreed that eliminating discrimination in public accommodations was a compelling state interest, but that treating access to Smith’s services specifically was not a compelling state interest. He also argued that the law was not narrowly tailored because the law could have permitted message-based exceptions or exceptions for artists engaged in speech.

The Chief Judge concluded that the law, as applied to Smith, violated the free exercise clause. He argued that the law had a system in place to grant individual exemptions, similar to the system the Supreme Court identified in Fulton v. Philadelphia. As a result, he concluded that it was not a neutral law of general applicability and was thus also subject to strict scrutiny on free exercise grounds.

This week (…actually the first week in December 2022), the Supreme Court is hearing the case that is another chapter in the clash of convictions of long-established religious beliefs with LGBTQ people’s civil rights. As predicted, the legal arguments seem to focus around free speech. As several commentators have noted the question can be phrased as: can the government compel artists or designers to express messages that contradict their beliefs? Or if granting access to public accommodation (in this case, business) can the government restrict artists or designers from expressing messages that express their faith.

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That what I wrote back in December 2022, now that SCOTUS has rendered a majority decision, it is time for an update

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It was an interesting experience to read the majority and minority opinions on the 303 Creative v. Elenis. Here is a poor (perhaps very poor) summary of the opinions:

The majority opinion (It seemed to be a tightly reasoned argument, largely concerned with the narrow merits of the case)

• Colorado argues that the websites from 303 Creative are ordinary commercial products, and that any burden on Ms. Smith’s speech is purely “incidental.” The opinion disagreed and simply pointed to what the State of Colorado had stipulated to at the District level that the website would contain unique and personal views of the creator. It was also noted, that Smith did not place restrictions on same-sex marriage, but as part of the agreed to stipulations, “she does not create expressions that defy any of her beliefs for any customer, whether that involves encouraging violence, demeaning another person.”
• As part of the stipulations, the State agreed that Ms. Smith “will gladly create custom graphics and websites for gay, lesbian, or bisexual clients or for organizations run by gay, lesbian, or bisexual persons so long as the custom graphics and websites” do not violate her beliefs.”
• Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected trait.
• The majority opinion “does not question the vital role public accommodations laws play in realizing the civil rights of all Americans. This Court has recognized that governments in this country have a “compelling interest” in eliminating discrimination in places of public accommodation.”
• After assembling the precedents, the opinion concludes “no public accommodations law is immune from the demands of the Constitution…public accommodations statutes can sweep too broadly when deployed to compel speech….As in those cases, when Colorado’s public accommodations law and the Constitution collide, there can be no question which must prevail.”

The minority opinion centers on their understanding of public accommodation laws (it was like reading a history of discrimination and the manner in which the Courts have addressed such discrimination in the protection of peoples and classes of people):

• The majority notes that the minority opinion argues a great deal apart from the specific facts of the case – to be fair, it is spent in laying out the groundwork for its view of the place, role and history of public accommodation laws. The minority cites many of the same cases as the majority, but each reaches a different conclusion. For example, one case cited by the majority is swept aside by the minority because it was held to be specific to not-for-profit organizations. Much of the minority argument is that the commercial nature of the business makes it subject to public accommodation laws – an argument that is not without its merits.
• “The concept of a public accommodation thus embodies a simple, but powerful, social contract: A business that chooses to sell to the public assumes a duty to serve the public without unjust discrimination.”
• Another major theme of the minority was creating a narrative history of class discrimination in the country, the court’s response and corrective, and arguing that the majority decision was a retreat from the broad movement of Supreme Court precedents in such cases.
• Much of the comparisons of case law used – it seemed to me – were cases in which the commercial entity was offering a generic product: a wedding cake, a hotel room, meals from a standard menu, and the like. The minority opinion seemed to brush aside that the State of Colorado already stipulated that the 303 Creative product was not “off-the-shelf.”  The minority opinion then compared the case to a wedding cake in which the company must offer to sell to same sex couples, but the state can’t compel the company to add “Love is Love” to the cake design. It seems that the minority opinion argues that there can be no expressive context in 303 Creative’s work that is made unique by protected speech. Because it is a commercial entity, protected speech may be subservient to public accommodation laws. (That might be a stretch in what the minority opinion said or intended, but it seemed to be the logical teleology of the comments.)

All that being written, I would just note that I am just a lay person when it comes to such matters. But it seems clear to me that the two opinions are arguing at some degree of cross purposes:

• One view argues the merits of the particular case before it on the grounds of free speech and public accommodation laws.
• The other argues on the same grounds, but it is less concerned with the narrow merits of one case, and more concerned with the implications of how people might exploit the majority opinion to circumvent accommodation laws.
• One view argues for the rights of an individual.
• The other view argues for the protection of a class of people above the rights of the individual.

Perhaps that is just a function of the lenses by which one views the role of SCOTUS: interpreters of the original founders intentions or interpreting in the light of the current moment.

But the distinction is important – it means the members of the Court do not agree on first principles. And with different starting points, one should not expect the members to reach the same conclusion.

Why my particular interest? As a Catholic priest one of my concerns is given the position of the Church on marriages other than between one man and one woman, where does religious freedom fall within this debate. I thought I would see some opinions that touched upon freedom of religion as it intersects free speech given Ms. Smith’s case arises from religious beliefs. I did not see it, but then again maybe I missed it.

In Florida, as long as I was authorized by a recognized religious organization, no civil license or appointment was needed to celebrate weddings that are both legally and canonically valid. The Commonwealth of Virginia requires that I apply for and obtain a license to perform legal marriages, making me an “officer of the Court.”  Could the Commonwealth compel me to perform a civil marriage apart from the canonical requirements of the Church? Could that include performing a marriage ceremony between same-sex couples? Perhaps as a non-for-profit entity it is all just speculation given neither opinion approached religious freedom and the minority opinion seemed to hold a different view about accommodation for not-for-profit organizations.

A final thought: in watching online coverage of the decision (television, social media, etc.) I am taken by how no one (or almost no one) discusses the merits of the cases or lays out the information continued in the stipulations. Expert panel discussions seem to follow the minority opinion on how this provides an open door to people whose intent is to actively discriminate. Perhaps their concerns are justified. Other panels extol commercial interests in the free market economy, governmental overreach,

The one line that stood our: “no public accommodations law is immune from the demands of the Constitution.”