In 303 Creative v. Elenis, the U.S. Supreme Court held that Colorado could not take legal action against a graphic designer who refused to create custom wedding websites for same-sex marriages because of her religious convictions. Despite those facts, the Court’s holding was grounded in the constitutional protection for freedom of speech and not freedom of religion.

The facts of the case are simple and were undisputed:

  • The owner of 303 Creative, Lorrie Smith, designs wedding websites, content, and graphics that are original, customized, and expressive in nature.
  • Ms. Smith was not willing to create wedding websites that conflicted with her sincerely held belief that marriage is a union between one man and one woman.
  • Ms. Smith was willing to create wedding websites for anyone regardless of their race, creed, sexual orientation, or gender as long as she did not need to create content that conflicted with her beliefs.
  • If Ms. Smith refused to create such content, the Director of Colorado’s Civil Rights Division intended to pursue claims of discrimination against 303 Creative.

Are Ms. Smith’s creations “pure speech” or a “public accommodation” available to all? Therein lies the rub.

According to the majority opinion, written by Justice Neil Gorsuch and joined by Chief Justice John Roberts and Justices Alito, Barrett, Kavanaugh, and Thomas, the undisputed facts left no doubt that Ms. Smith’s creations are “pure speech” because they contain “images, words, symbols and other modes of expression” that are “original and customized” and intended to “celebrate and promote a couple’s wedding and unique love story.”

After concluding that Ms. Smith’s website creations constituted “pure speech,” things rolled swiftly downhill for the rest of Colorado’s arguments. The grease for that skid is relatively easy to understand and deeply rooted in the American tradition of free speech.

If Colorado could use its anti-discrimination laws to punish Ms. Smith for refusing to create websites for gay marriages it would, in effect, be compelling her to create content (or speech) that conflicted with her beliefs. As the majority opinion saw it, if Colorado could do that then it could use its anti-discrimination laws to require a “Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal.”

Every elementary school student learns about the Bill of Rights and its guarantee of free speech. As Justice Gorsuch described it, “if there is any fixed star in our constitutional constellation” it is the principle that government cannot interfere with a citizen’s right of free speech, nor can it compel citizens to speak what they do not believe.

In a scathing dissent, Justice Sonia Sotomayor (joined by Justices Jackson and Kagan) rejected the conclusion that Ms. Smith’s website creations constituted “pure speech.” Rather, she characterized them as being no different from services or products offered by any other business.

Relying on legal principles dating back hundreds of years, Justice Sotomayor noted that any business which holds itself out as offering any type of service or accommodation to the public must do so in a neutral and non-discriminatory way. Framed in those terms, Ms. Smith’s website services were not “pure speech.” Instead, they were an accommodation, product, or service that must be offered in a non-discriminatory manner, and Colorado could use its anti-discrimination to ensure that they were.

What is the impact of 303 Creative on employers?

The Court’s Opinion already has sparked dire warnings about its impact on the LGBTQ+ community, but that impact is likely to be limited to situations in which (1) a vendor of customized and expressive products faces a threat of government action for refusing to create those products, and (2) the refusal is based on objections to the content of the requested message rather than the status of the person making the request. If your business falls into this category, then 303 Creative has implications for you.

If that is not the nature of your business, then 303 Creative does not alter the general rule that your business cannot deny its goods or services to persons based on their protected characteristics, which now include most of the LGBTQ+ community.

303 Creative is not likely to have any significant impact on day-to-day employment actions and practices. Whatever impact it may have pales in comparison to that of the Court’s recent decision in Groff v DeJoy regarding an employer’s obligation to accommodate its employees’ religious beliefs and practices. The ramifications of that decision on employment practices will reverberate for years to come.

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