303 Creative v. Elenis

Colorado has a public accommodations law protecting LGBT civil rights. The Colorado Anti-Discrimination Act (CADA) defines a “public accommodation” to include almost every public-facing business in the State. The CADA's “Accommodation Clause” prohibits a public accommodation from denying “the full and equal enjoyment” of its goods and services to any customer based on race, creed, disability, sexual orientation, or other statutorily enumerated trait.

303 Creative LLC, a graphic design firm operated by Lorie Smith, offers services in Colorado including "website and graphic design, marketing advice, and social media management services" and had plans to begin offering "services for couples seeking websites for their weddings." The websites for engaged couples would be “customized and tailored” for each individual couple, and are "expressive in nature."

Ms. Smith was “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender,” and she would “gladly create custom graphics and websites” for clients of any sexual orientation, but she refused to produce content that contradicts her sincerely held religious beliefs.

Ms. Smith requested an injunction at the U.S. District Court for the District of Colorado to "prevent the State from forcing her to create wedding websites celebrating marriages that defy her beliefs." The district court ruled against Ms. Smith. On appeal, the 10th Circuit also ruled against her, finding that Colorado met the Strict Scrutiny standard; that forcing Ms. Smith to create speech would serve a compelling governmental interest and that no less restrictive alternative exists to secure that interest.

Can the State force someone who provides her own expressive services to speak its preferred message?

What if a business refuses to provide service to inter-racial couples?

No. Colorado's public accommodations law does not supersede the Free Speech Clause of the First Amendment.

Reversed.

• "the First Amendment extends to all persons engaged in expressive conduct, including those who seek profit (such as speechwriters, artists, and website designers)."
• "All manner of speech—from 'pictures, films, paintings, drawings, and engravings,' to 'oral utterance and the printed word'—qualify for the First Amendment’s protections; no less can hold true when it comes to speech like Ms. Smith’s conveyed over the Internet."

The State cannot compel a person to use their creative talents in service of speech with which they fundamentally disagree.^[1]

• The Court declined to define "what qualifies as expressive activity protected by the First Amendment," deeming that question as unnecessary for the purposes of this case (both parties had stipulated that Ms. Smith's websites constituted expressive activity).
• The Court recognized that public accommodation laws still satisfy the “compelling interest” in eliminating discrimination and play a "vital role . . . in realizing the civil rights of all Americans."

Standing

Van Jones comments: "And all the things I was taught in law school are now out the door. You used to have to have standing. You couldn’t just, “well, look, I’m concerned about the law. I want the Supreme Court to tell me I’m right.” That’s what just happened. When it comes to LGBTQ, LGBTQ rights. Literally this woman had not been sued by anybody, she hadn’t, had no reason to be in court at all. Standing used to be important. That’s out the window." (CNN clip 'This is bad': Van Jones sounds off over key Supreme Court rulings - YouTube )

After the decision, PETE BUTTIGIEG criticized SCOTUS for violating the rule on standing because there was no actual injury to the plaintiff " there's no evidence that this Web designer was ever even approached by a same-sex couple looking for services to support their wedding." Face the Nation, 07-02-2023. The man cited by Lorie Smith told the AP, "I was incredibly surprised given the fact that I’ve been happily married to a woman for the last 15 years."