U.S. Supreme Court rules Constitution’s Free Speech Clause protects website designer’s plans to refuse same-sex wedding services against state law barring discrimination

In a closely watched Free Speech case, 303 Creative v. Elenis, the U.S. Supreme Court ruled that the First Amendment bars the state of Colorado from enforcing its nondiscrimination law against a website designer who wants to create custom wedding websites as part of her business but not for same-sex marriages, which she opposes on religious grounds. In a 6-3 ruling, the Court emphasized that unlike the goods and services offered by many other businesses, the custom websites proposed at issue in this case are “expressive speech” protected by the Constitution. 

Writing for the majority, Justice Neil Gorsuch explains:

States may “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. And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment.” … At the same time, this Court has also recognized that no public accommodations law is immune from the demands of the Constitution. In particular, this Court has held, public accommodations statutes can sweep too broadly when deployed to compel speech.

…

In this case, 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 in a dissenting opinion, Justice Sonia Sotomayor argues the “sweeping” exemption Lorie Smith and her company 303 Creative (the petitioners) seek from the state’s nondiscrimination law is not protected expressive speech but is status-based discrimination. “This is plain to see,” she writes, “for all who do not look the other way.” She writes:

Petitioners maintain, as they have throughout this litigation, that they will refuse to create any wedding website for a same-sex couple. Even an announcement of the time and place of a wedding…abridges petitioners’ freedom of speech, they claim, because “the announcement of the wedding itself is a concept that [Smith] believes to be false.” Indeed, petitioners here concede that if a same-sex couple came across an opposite-sex wedding website created by the company and requested an identical website, with only the names and date of the wedding changed, petitioners would refuse. That is status-based discrimination, plain and simple.

As Justice Sotomayor also points out, this case could have implications for beyond the realm of same-sex marriage if any protected class is confronted with status-based discrimination that is deemed protected expressive speech. She gives the example of an interracial couple denied wedding-related services, and the same logic could also conceivably apply to protect instances of religious discrimination. This case raises important and difficult First Amendment questions about the distinction between expressive speech and status-based discrimination. It bears watching how courts will interpret this opinion going forward.  

BJC General Counsel Holly Hollman issued a statement after the ruling, noting that the prohibition on government-compelled speech is an important part of the First Amendment, but it shouldn’t be a way to circumvent nondiscrimination laws that apply to businesses open to the public:

Colorado’s statute serves an important public interest in ensuring equal access to the commercial marketplace without regard to race, religion, sex, sexual orientation, national origin and other protected categories. BJC affirms the significance of laws like Colorado’s and rejects any attempt to portray them as an infringement on religious liberty.

 

While Americans are free to express their religious and secular views about marriage, including those that conflict with nondiscrimination protections for same-sex marriage, BJC continues to believe that protecting religious freedom does not require granting broad exemptions that would undermine expectations for fair treatment in the commercial marketplace.

For more on this case, check out BJC’s Respecting Religion podcast, season 4, episode 8 (recorded after oral arguments), in which Amanda Tyler and Holly Hollman discuss how the case may impact religious freedom and nondiscrimination laws. They’ll have more on next week’s episode, too, which will be the season finale. Stay tuned!