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More than a year after the case was first argued, the case of 303 creative LLC v. Elenis. On June 30, 2023, The Supreme Court met to decide the anti-discrimination case of 303 Creative LLC v. Elenis. Plaintiff and website designer, Lorie Smith, wanted to venture into creating wedding websites for couples, that is, heterosexual couples.
Smith planned to state on her website that she would not accept homosexual couples but learned that it would violate Colorado law, which prohibits “public accommodations” from refusing service based on race, religion, or sexual orientation.
As a graphic designer, Smith clarified that she would not discriminate against anyone regardless of race, creed, sexual orientation, or gender with regard to providing standard design services. However, she would not offer the service of creating a wedding website for any marriages that go against Biblical standards- meaning marriages that are not between one man and one woman.
Smith, however, had not yet been asked to design a website by a gay couple; she was, in fact, preemptively stating her case, challenging the law through a pre-enforcement challenge.
The message Smith wanted to convey is, “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.”
The Decision
The 6 to 3 decision in favor of Smith held that “The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.”
This decision reversed the ruling of 303 Creative LLC v. Elenis in the 10th U.S. Circuit Court of Appeals, which occurred in 2021. The ruling decided that the Colorado anti-discrimination law did not violate the First Amendment.
According to Colorado’s anti-discrimination law, Smith would be violating it under two provisions.
The first provision, the Accommodation Clause, “prohibits public accommodations 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.”
The 10th Circuit voted 2-1, maintaining that the law was fair under strict scrutiny, “a form of judicial review that courts use to determine the constitutionality of certain laws,” oftentimes used in cases of a plaintiff suing the government for discriminatory behaviors.
The decision of the 10th Circuit was reversed due to the “compelled speech doctrine,” which maintains that “the government cannot force an individual or group to support a certain expression.”
Representation of the Majority and Minority
Supreme Court Justice Neil M. Gorsuch, representing the majority, stated that the Colorado Anti-Discrimination Act would compel Smith to portray messages she does not want to portray, thus violating the compelled speech doctrine.
He also stated that governments have a “compelling interest” in “eliminating discrimination in places of public accommodation” and that states can “protect gay persons, just as [they] can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”
Though Justice Gorsuch acknowledged that governments have an interest in eliminating discrimination and that states can protect the LGBTQIA community, he maintained that Smith wouldn’t portray certain messages, not that she wouldn’t serve customers on the basis of sexuality. Meaning she would serve members of the LGBTQIA community for graphic design services but would not create wedding websites for them.
With the opposing viewpoint, Justice Sonia Sotomayor dissented, “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”
Justice Sotomayor considered the fact that Smith is not providing full, equal, and complete service to customers of the LGBTQIA community. She concluded that the court violated the decision in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, which, in 2018, declared that “religious and philosophical objections to gay marriage “do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.’”
A Related Case
Masterpiece Cakeshop v. Colorado Civil Rights Commission was heard after a bakery owner told a gay couple that they wouldn’t sell a wedding cake to same-sex couples. The couple filed complaints with the Colorado Civil Rights Division, arguing that the bakery violated Colorado’s Anti-Discrimination Act.
The Colorado Civil Rights Commission sided with the couple, declaring that the bakery illegally discriminated against the couple.
On August 15, 2015, the Colorado Court of Appeals unanimously agreed with the Commission. It was also determined that the anti-discrimination act did not infringe on the bakery’s freedom of speech or religion.
On June 26, 2017, the United States Supreme Court “granted certiorari.” However, on June 02, 2018, The Supreme Court reversed the decision.
President Biden’s Statement
With regard to 303 Creative LLC v. Elenis, President Biden released a statement in which he said that he’s concerned this decision could lead to more discrimination against LGBTQIA Americans.
Biden wrote, “More broadly, today’s decision weakens long-standing laws that protect all Americans against discrimination in public accommodations – including people of color, people with disabilities, people of faith, and women.”
Bidens states that his administration is “committed to working with our federal enforcement agencies to rigorously enforce federal laws that protect Americans from discrimination based on gender identity or sexual orientation. We will also work with states across the country to fight back against attempts to roll back civil rights protections that could follow this ruling. And we will accelerate our march towards full equality for every American.”
It’s Not Over Yet
It’s then a slippery slope we’re on as we see more and more discriminatory behavior in these turbulent political times.
Though the decision fell where it did, the sentiment of 303 Creative LLC v. Elenis is not over. With the continued marginalization of the LGBTQIA community, as evidenced by the findings in 303 Creative LLC v Elenis, it is important that allies speak up for and support these communities, especially as the government does not always choose to do so.
