Written By: Ben Gersch
On December 5, 2022 the Supreme Court of the United States heard arguments in 303 Creative LLC v. Elenis. The question presented to the Court is whether applying an anti-discrimination law to an artist seeking to portray a particular message violates the free speech clause of the First Amendment.
The owner of 303 Creative, Lorie Smith, sought to expand her graphic design firm’s business to include creating wedding websites. Smith opposes same-sex marriage and does not want to design wedding websites for same-sex couples. The Colorado Anti-Discrimination Act (“CADA”) prohibits businesses which are open to the public from discriminating on the basis of sexual orientation. Smith sued Aubrey Elenis, Director of the Colorado Civil Rights Division, alleging CADA violates the First Amendment by compelling artists to speak against their convictions. The District Court granted summary judgement for the state and the Tenth Circuit Court of Appeals affirmed.
At arguments some of the justices seemed concerned that the dispute was not yet ripe. The ripeness doctrine originates from the U.S. Constitution’s requirement that the Supreme Court hear only “cases” or “controversies.” A case is not ripe if the controversy is merely prospective. No couple has commissioned 303 Creative to design their wedding website. Thus, petitioner has not denied service to anyone, nor has she been compelled to create art bearing a certain message. Petitioner has argued that the case is ripe because CADA has a chilling effect on her speech. If the Court decides that the case is not ripe, the case would be dismissed.
During litigation, the parties fundamentally disagreed on the nature of the dispute on the merits. Petitioner Smith has portrayed the controversy as one about the right to free speech. This case, she urges, is about whether the government may compel an artist to create art with a certain message. The State respondents have sought to emphasize anti-discrimination. They argue that the proper question is whether CADA violates the First Amendment when it requires a business to offer customers goods and services regardless of those customers’ protected characteristics.
The parties have also disputed the correct legal test. Petitioners argued that because CADA compels speech, the state must satisfy strict scrutiny before applying the law. Strict scrutiny requires that the prohibition on speech satisfy a compelling government interest and that it be narrowly tailored to achieve that interest. The respondent argued at most intermediate scrutiny applies because the burden on speech is incidental to CADA’s regulation of conduct. Intermediate scrutiny requires that the law serve an important purpose and is no more restrictive than necessary to serve that purpose. The Tenth Circuit held that the website creation was pure speech—not incidental to conduct—but nevertheless found that the law satisfied strict scrutiny.
This case presents novel questions about the intersection between anti-discrimination law and the Free Speech Clause of the Constitution. The petitioner has stated that her business will create websites for gay customers. She refuses only to create websites for same-sex weddings. This fact distinguishes the petitioner’s case from other anti-discrimination disputes. On the other hand, the petitioner filed suit before creating any wedding websites. Her objection, therefore, could be viewed as not resting on the content of the website she would be asked to create. This fact suggests that her objection is not to the message her art may send, but to the identity of the customer for whom it is created.
Such an objection is precisely the kind that anti-discrimination laws seek to avoid. In one sense, all anti-discrimination laws compel speech. A law forcing businesses to serve gay people compels businesses to send the message: “gay people are welcome.” Likewise, a law forcing businesses to serve Black people compels the message: “Black people are welcome.” CADA compels speech in the same way the Civil Rights Act of 1964 compels speech. If the Court were to strike down CADA on the grounds that the statute compels speech in this same manner, then every other state or federal anti-discrimination statute could be vulnerable to a similar challenge. For the petitioner to succeed, she likely needs to demonstrate that her challenge is based on the content of the art rather than the identity of the customer. But given that no couple—gay or otherwise—has asked her to create a wedding website, she cannot yet point to any specific, state-compelled content that is objectionable to her.
If her objection to the speech is based on the identity of the customer then it is no different from the speech that every anti-discrimination law compels and it is less likely the Court would sustain such an objection. If her objection is based on the content of the art then her claim is likely not ripe because nobody has asked her to create a wedding website. Nevertheless, questioning at argument suggested that a majority of justices is likely to accept her claim that CADA unconstitutionally compels speech.
The Court is expected to issue a decision in June, 2023.
303 Creative LLC v. Elenis, 6 F.4th 1160 (10th Cir. 2021).
Brief for Petitioner, 303 Creative LLC v. Elenis, No. 21-476 (May 26, 2022)
Brief for Respondent, 303 Creative LLC v. Elenis, No. 21-476 (Aug. 12, 2022)
Ilya Shapiro, Perspective: The most outlandish analogies in the 303 Creative case, DESERET NEWS (Dec. 7, 2022, 11:00 PM).
Oyez, https://www.oyez.org/cases/2022/21-476 (last visited Dec. 18 2022).
SCOTUS BLOG, https://www.scotusblog.com/case-files/cases/303-creative-llc-v-elenis/ (last visited Dec. 18 2022).