When the Freedom of Speech Oversteps Into Discrimination

On June 30th, 2023, for the first time, the Supreme Court essentially ruled that it is acceptable for people and businesses to discriminate against same-sex couples. Through their decision in 303 Creative LLC v. Elenis, the Court explored the intersections between anti-discrimination law in public accommodations and the Free Speech Clause of the First Amendment – and ultimately prioritized free speech. 303 Creative LLC v. Elenis infringes on civil rights laws using the First Amendment by potentially encouraging discrimination against LGBTQI+ Americans and weakening laws that have protected all Americans from discrimination.

303 Creative LLC stemmed from a tension between an individual’s personal belief and a state public accommodation law. 303 Creative LLC owner Lorie Smith brought the suit against the state of Colorado, represented by Aubrey Elenis, who is the director of the Colorado Civil Rights Division. Smith hoped to incorporate services for couples seeking wedding websites into her graphic design business, 303 Creative LLC. However, she feared that by doing so, Colorado would use the Colorado Anti-Discrimination Act (CADA) to force her to provide services to same-sex marriages, which is against her Christian faith. Smith believes same-sex marriages are against God’s will. CADA is an anti-discrimination law prohibiting the denial of a person’s access to public accommodations based on their race, sexual orientation, or other traits. The law defines public accommodation as almost every public-facing business. [1] To address this potential problem, Smith preemptively filed a lawsuit seeking to prevent Colorado from interfering with her business and forcing her to create websites for same-sex couples.

In 2016, Smith sued Colorado in the District Court for the District of Colorado and the Court ruled in favor of Colorado in 2019. Smith appealed to the United States Court of Appeals for the Tenth Circuit, and the Court ruled against Smith, stating that although Smith’s First Amendment rights would be violated, CADA satisfied strict scrutiny and was therefore constitutional. [2] A court may apply strict scrutiny to determine whether a law that counters the Constitution is both narrow and necessary to achieve a “compelling government interest.” [3] According to the lower courts, CADA sufficiently met this standard by protecting the state’s interest of anti-discrimination. When the case was finally argued before the Supreme Court on December 5, 2022, Smith maintained that CADA violated her First Amendment rights to freedom of religion and freedom of artistic expression. Elenis countered that CADA only restricts discriminatory commerce and not freedom of speech or religion. The Court established that Smith’s customized website design is considered “pure speech” protected by the First Amendment, which essentially characterizes the designer’s website as a form of expression communicating ideas. [4] In a 6-3 ruling, the Court held that Colorado cannot force a designer to create a wedding website for same-sex couples when the person personally disagrees with the messages being expressed, and that this does not violate CADA. The Court based its decision on the First Amendment’s Free Speech Clause. [5]

303 Creative LLC follows a similar landmark case—Masterpiece Cakeshop v. Colorado Civil Rights Commission (2017). Masterpiece Cakeshop dealt with similar conflicts between CADA and First Amendment rights. Masterpiece Cakeshop, a bakery in Colorado, refused to customize a wedding cake for a gay couple because of the owner’s Christian beliefs. The Colorado Civil Rights Commission concluded that the bakery violated the anti-discrimination law, CADA, by not providing services to the couple. Appeals within the state resulted in affirmations of the Commission’s decision. After being taken to the Supreme Court, in a 7-2 decision, the Court reversed the ruling of the lower courts. The Court held that the Colorado Civil Rights Commission’s decision requiring the bakery to provide wedding cakes to same-sex couples violated the owner’s rights to practice religion and thus the Free Exercise Clause. They ruled on the basis that the Commission did not employ religious neutrality in its decision by exhibiting hostility towards the bakery owner’s religious views. The Court gave two reasons for this holding: first, Colorado ruled in favor of bakers in three other cases; second, some statements made by members of the Commission exhibited hostility towards the owner’s religious beliefs. [6] On these grounds, the Court ruled that the Commission violated the First Amendment’s Free Exercise Clause and as a result, did not rule on the intersection of anti-discrimination law and the First Amendment. Although the Court reversed the Commission’s decision on the basis of hostility towards religion, the Court neglected the constitutional questions that resulted from the tensions between religious rights and anti-discrimination law.

Masterpiece Cakeshop left the question of discrimination in the form of speech unanswered, but six years later, 303 Creative LLC tackled a similar question and ultimately ruled that anti-discrimination laws cannot impede the right to freedom of speech. It is clear that the two cases share many qualities: both involve freedom of speech and freedom of religion and whether they can justify constitutional discrimination in settings of public accommodations. 303 Creative LLC was a victory for free speech, yet it has clearly infringed upon laws protecting Americans from being treated as second-class citizens in public accommodations.

Nonetheless, the Court’s decision is not logically conclusive. The Court argued that Smith’s website business is expressive in nature and therefore the Free Speech Clause of the First Amendment shields it from the state’s generally applicable anti-discrimination law in public accommodations.  However, the case should ultimately not be about the freedom of speech in the First Amendment and should instead be a case of public accommodations. Public accommodations are businesses and facilities that are meant to be opened to the general public. The businesses’ discrimination in their public accommodation is not speech nor expression but an act of discrimination, which is not protected by the Constitution.

Public accommodations have no right to refuse services to any groups, especially not to groups that have faced historic discrimination. If rightfully viewed as a public accommodations case instead of a free speech case, 303 Creative LLC must abide by state-wide laws like CADA as well as federal anti-discriminatory legislation like the Civil Rights Act of 1964. Title II of the Civil Rights Act of 1964 states that all individuals in America have the civil right to enjoy full access to public accommodations, and that there should be no potential discrimination. This act expresses how “all persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation…without discrimination on the ground of race, color, religion, or national origin.” [7] The federal Civil Rights Act then lists establishments that qualify as public accommodations, including hotels, restaurants, gas stations, and movie theaters, which must be open to the general public. A public accommodations law has the power to compel businesses that choose to serve the general public and reap these benefits to abide by non-discriminatory practices. At its core, the problem with the ruling is that the Court has blurred the definition of public accommodation as well as the definition of speech and expression.

Today, the Supreme Court can characterize website designing as speech and expression and use that as a basis to grant a graphic design business the constitutional right to not offer services to certain populations; tomorrow, there might be hotel designing or food designing categorized as expressive designs that convey certain messages. Might those be used as a basis for the right to not let certain people stay in a hotel or eat at a restaurant? Of course, these examples might seem far-fetched, and even preposterous, but they reflect the potential implications of blurring the lines between freedom of speech and public accommodations.

303 Creative LLC v. Elenis sets a troubling precedent because business owners can feel as though they have the constitutional right to discriminate without any regulations and without any consequences. For example, after this decision, a hairdresser posted publicly about refusing service to people who use a different pronoun than what was assigned at birth. [8] The interpretation is legally unreasonable as the court case only ruled that public accommodations law cannot compel expressive speech. But, the fact that people have such interpretations is a sign that many feel like the case justifies their discrimination. The LGBTQ+ community is already a marginalized group, and this decision has aggravated and intensified their discrimination. 303 Creative LLC oversteps the application of the First Amendment by dismissing and violating anti-discriminatory laws that should be applicable to the case. The decision can have detrimental consequences on already marginalized groups, potentially fueling further blatant public discrimination of LGBTQI+ Americans and others.

Edited by Tal Dimmenstein

[1] “Welcome to the Colorado Civil Rights Division,” Colorado Civil Rights Division, https://ccrd.colorado.gov/

[2] 303 Creative, et al. v. Elenis, et al., No. 19-1413 (10th Cir. 2021)

[3] “Strict Scrutiny,” Legal Information Institute, Cornell Law School. https://www.law.cornell.edu/wex/strict_scrutiny

[4] “303 Creative v. Elenis: Supreme Court Recognizes Free Speech Exception to Nondiscrimination Law,” Congressional Research Service, July 6, 2023, https://crsreports.congress.gov/product/pdf/LSB/LSB11000

 https://crsreports.congress.gov/product/pdf/LSB/LSB11000

[5] 303 Creative LLC v. Elenis, 600 U.S. (2023) https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf

[6] Masterpiece Cakeshop v. Colorado Civil Rights Commissions, 584 U.S. __ (2018)

https://www.supremecourt.gov/opinions/17pdf/16-111_new2_22p3.pdf

[7] “Title II of the Civil Rights Act (Public Accomodations)”, Civil Rights Division, U.S. Department of Justice, https://www.justice.gov/crt/title-ii-civil-rights-act-public-accommodations

[8] Solcyre Burga, “The Implications of Supreme Court’s 303 Creative Decision are Already Being Felt,” TIME magazine, July 16, 2023, https://time.com/6295024/303-creative-supreme-court-future-implications/