On February 22, the Supreme Court agreed to hear 303 Creative LLC v. Elenis, a case involving a Christian website designer’s refusal, in the face of Colorado’s Anti-Discrimination Act (CADA), to create websites that celebrate same-sex weddings. In doing so, the Court has the opportunity to place in proper order two legal guarantees: protection against government-compelled speech and anti-discrimination on the basis of sexual orientation.
Lorie Smith of Littleton, Colorado, designs custom websites under a single-member limited-liability company called 303 Creative. The record makes clear, and the state does not contest, that Smith “will gladly create custom graphics and websites for gay, lesbian, or bisexual clients.” She intends (but has not yet begun) to expand her business into unique websites that celebrate weddings. Herein lies the problem.
In a situation that echoes the 2018 Masterpiece Cakeshop case, which also occurred in Colorado but was decided on narrow grounds for baker Jack Phillips, Smith believes in the traditional understanding of marriage as necessarily between a man and a woman. Her proposed wedding website contains a statement describing her religious convictions and explaining why they prevent her from creating content for same-sex marriages.
CADA makes illegal both statements that signal exclusion and actions that refuse, on the basis of sexual orientation and other protected characteristics, “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.” Prohibiting Smith from publishing the statement of her beliefs and requiring her to create unique, custom websites celebrating same-sex weddings, she contends, would violate her First Amendment guarantees of free exercise of religion and freedom of speech. Consequently, Smith sought a declaratory judgment to prevent Colorado from enforcing the law against her prospective wedding-site expansion.
The district court granted summary judgment in favor of the state, and a divided three-judge panel of the Tenth Circuit affirmed. The majority recognized that Smith’s “creation of wedding websites is pure speech” that triggers strict scrutiny, the most difficult form of judicial review for the government to meet and thus the most likely to strike down a law as unconstitutional. Nonetheless, the ruling adopted a novel theory: CADA ensures equal access not to custom-made websites in general but specifically to Smith’s custom websites. In effect, the appellate court treated artistic works as entirely nonfungible and artists as monopolists, giving Colorado the green light to compel Smith’s expression. Chief Judge Tymkovich dissented, characterizing the majority’s holding as “staggering” in its breadth, potentially forcing all artists “to promote messages approved by the government in the name of ‘ensuring access to the commercial marketplace.’”
The Supreme Court granted review only on Smith’s free-speech claim, opting not to address the claim based on free exercise. But even on these limited grounds, 303 Creative may be an important case in the next term.
The right to be free from government-compelled speech is not absolute. Businesses are routinely required to disclose information ranging from SEC 10-K Forms to calorie counts. Individuals, too, must answer the Census, report their income for tax purposes, and speak in court if necessary.
Compelled speech becomes constitutionally problematic, however, when the law enlists someone to adopt a message against his will. The First Amendment’s guarantee of freedom of speech accordingly protects the ability not to say things that one does not believe. In the 1977 case Wooley v. Maynard, the Supreme Court invalidated a New Hampshire law requiring motorists to display the state’s motto—“Live Free or Die”—on license plates because it violated the convictions of Jehovah’s Witnesses. Nearly two decades later, in Hurley v. Irish-American GLIB, a unanimous Court held that a Massachusetts law could not force the organizers of Boston’s St. Patrick’s Day Parade to include gay and lesbian marchers under a group banner because that would oblige the organizers into endorsing speech with which they disagreed.
Many find Smith’s views objectionable, but that doesn’t make the principle underlying her claims wrong. Smith’s artistic license is not a public good. It belongs to her, her business, and the clients with whom she collaborates. While her skills are indeed unique, other designers can certainly create websites of comparable quality and aesthetic merit.
Viewing 303 Creative as a straightforward discrimination case against same-sex couples or as a way for conservative justices to flex their muscles misses the broader social interests at play. Were the Court to affirm the Tenth Circuit’s ruling, that would signal that the more unique and artistically motivated one’s expression is, the less protection it deserves from governmental coercion.
To compel speech in the service of anti-discrimination would turn the principle of toleration on its head. Sanctioning such compulsion may even inadvertently weaponize laws intended to protect minority groups. After all, CADA and similar acts also protect against religious discrimination. Tymkovich raised the possibility of compelled religious speech in his dissent, writing, “The expansive view Colorado takes of CADA’s reach would not stop with Ms. Smith’s wedding websites. Indeed, the State could wield CADA as a sword, forcing an unwilling Muslim movie director to make a film with a Zionist message or requiring an atheist muralist to accept a commission celebrating Evangelical zeal.”
Nobody should wish to live in such a country. While only some fall into a protected class of a racial, religious, or sexual minority, everyone believes in something. Compelling people to violate their beliefs destroys the foundation upon which respectful coexistence rests. 303 Creative provides the opportunity to reaffirm Americans’ legal and cultural commitment, in spite of indignation, to defend the right of their countrymen to speak—or not speak—in accordance with their convictions.
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