Decision in 303 Creative v. Elenis - Common Ground

At the Intersection of Free Speech and LGBTQ+ Rights

In the second installment of Hamilton’s 2023-24 Common Ground series, moderator Michael J. Grygiel ’79, P’23 united legal experts Eric Olson, Hila Keren, and Dale Carpenter for a discussion on the intersection of free speech and LGBTQ+ rights.

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From left to right, Mike Grygiel, Eric Olson, Hila Keren and Dale Carpenter lead a Common Ground panel discussion. — Watch a recording of the October 18 discussion.

Background

Lorie Smith, the owner of 303 Creative, is a graphic website designer from Colorado who wanted to expand her business to provide design services to couples seeking websites for their weddings. While willing to provide her general services to LGBTQ+ individuals, Ms. Smith refused to design wedding websites for gay couples based on her religious belief that marriage should be reserved to unions between one man and one woman. Concerned that compliance with Colorado’s Anti-Discrimination Act (“CADA”), which prohibits a public accommodation from denying equal access to goods and services to any customer based on “sexual orientation,” “gender identity,” and “gender expression” among other enumerated characteristics, would force her to express a view with which she disagreed, Ms. Smith filed a lawsuit alleging that CADA’s application in this context would violate her First Amendment right of free speech. In defense of CADA, Colorado argued that the law did not compel Ms. Smith to speak at all let alone convey a particular message, but simply required her to provide on a non-discriminatory basis the same wedding website design services to both straight couples and gay couples — in other words, the law regulates the conduct of market participants, not their speech.

On June 30, 2023, in a controversial 6-3 decision authored by Justice Gorsuch, the Supreme Court ruled in favor of Ms. Smith, finding that CADA’s requirement she design customized gay marriage websites would amount to compelled speech in violation of the First Amendment by mandating the creation of expression to which she objected as a fundamental matter of conscience and conviction. According to the majority opinion, “[i]n this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her con-science about a matter of major significance.”

Writing in dissent, Justice Sotomayor saw the issue very differently in accepting Colorado’s position that CADA does not regulate speech but the act of discrimination, which has never been a form of expression protected under the First Amendment. According to her analysis, CADA’s anti-discrimination principle ensures equal dignity for all citizens in the common market by preventing invidious discrimination and therefore serves a government interest of the highest order. In furtherance of this principle, the dissent warned about relegating LGBTQ+ community members to second-class citizenship: “[b]y issuing this new license to discriminate in a case brought by a company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.”