• The U.S. Supreme Court recently handed down a decision holding that the State of Colorado may not force a website developer to create websites for same-sex weddings
  • While many commentators have emphasized the website developer’s Christian convictions, the court’s declaration forbids compelled speech of all kinds, regardless of why the speaker wishes to remain silent
  • Other commentators seem to fear the declaration constitutes a general license for discrimination against gays and lesbians, but in fact the court explicitly declared that states may continue to enforce their antidiscrimination laws as long as that enforcement doesn’t constitute compelled speech

I wasn’t surprised by the level of motivated reasoning on display in the responses to the U.S. Supreme Court’s recent decision in 303 Creative v. Elenis. As a lawyer, when I review a judicial decision, I begin by identifying the specific question presented to the court. I then try to determine whether the court has answered that question correctly given the relevant laws and precedents and given the arguments articulated by the parties. 

As I’m well aware, however, most nonlawyers evaluate judicial decisions differently, by applying a simple algorithm. A decision is good if it promotes their policy preferences or feels like an ideological or political victory. If, on the other hand, it frustrates their preferences or feels like a loss, it is bad.

What did surprise me about the responses to 303 Creative was how frequently the writers seemed confused about the underlying issue in the case and about what the decision portends regarding the future of civil rights in America. In this brief I will try to clear up those common misunderstandings.

Case Summary

The plaintiff in 303 Creative, Lorie Smith, is a website designer based in Colorado. She wanted to expand her business to include wedding websites, but as a devout Christian, she felt she could not in good conscience design websites for same-sex weddings.

Ms. Smith was aware that the Colorado Anti-Discrimination Act (CADA) prohibits a “public accommodation” (broadly defined to include virtually all businesses) from denying to any customer “the full and equal enjoyment of its goods and services on the basis of race, creed, disability, sexual orientation, or other statutorily enumerated trait.” Ms. Smith was also aware that a Christian baker who refused to make a custom cake for a same-sex wedding had been fined under that law and forced to participate in mandatory educational programs and submit regular compliance reports.

Hoping to avoid such a fate, Ms. Smith formally asked the Colorado Civil Rights Commission (CCRC) whether it would similarly enforce the CADA against her if she were to refuse to create a website for a same-sex wedding. When the CCRC replied that it would, Ms. Smith filed a complaint asking the court to declare that forcing her to design a website for a same-sex wedding would violate the Free Speech Clause of the First Amendment.

After losing first at the district court level and again at the U.S. Court of Appeals for the 10th Circuit, Ms. Smith took her appeal to the U.S. Supreme Court, and there she finally received the relief she was seeking. The court declared that applying a public accommodation law in a way that compels an artist to speak or stay silent violates the Free Speech Clause of the First Amendment. As Justice Gorsuch explained in his opinion for the majority:

Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. … But … the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong. Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider unattractive, misguided, or even hurtful. But tolerance, not coercion, is our Nation’s answer. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. [Quotation marks and citations omitted.]

The Underlying Issue

Despite the clarity of both the question presented and the court’s answer, many on both sides of the political and ideological divide have made the mistake of thinking Ms. Smith’s religious convictions were somehow integral to the case. Some on the right have celebrated what they regard as a victory for religious liberty, and some on the left have deplored what they regard as victory for religious bigotry. In fact, however, the case wasn’t about religion at all, and the holding applies to anyone who wishes to remain silent, regardless of the reason. As Justice Gorsuch noted, to hold otherwise:

would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The government could require an unwilling Muslim movie director to make a film with a Zionist message or an atheist muralist to accept a commission celebrating Evangelical zeal. … Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage. Countless other creative professionals, too, could be forced to choose between remaining silent, producing speech that violates their beliefs, or speaking their minds and incurring sanctions for doing so. [Quotation marks and citations omitted.]

This ought to be a result that everyone can endorse, and not so long ago that’s probably what would have happened. Sadly, these days our national commitment to freedom of speech seems to be dwindling.

The Implications

To judge by their comments, many seem to think the court’s decision in 303 Creative means shopkeepers and service providers across the country are now free to deny service to gays and lesbians whenever they choose, but that is emphatically not the case. The CADA remains in place, and nothing in the court’s decision prevents Colorado from enforcing that law in most situations. Ms. Smith has stated that, while she won’t be compelled to design sites for same-sex weddings, she “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.” Nevertheless, if she fails to do so she will still be subject to discipline by the CCRC. As Gorsuch says in his opinion, “Colorado and other States are generally free to apply their public accommodations laws, including their provisions protecting gay persons, to a vast array of businesses.” The decision merely forbids states from applying such laws to compel speech. Why? Because “no public accommodations law is immune from the demands of the Constitution.”

There’s more to be said about 303 Creative, and I hope to say some of it in a future research brief, but I hope these comments will bring a bit of clarity to the discussion.