Front of appellate courthouse.

On June 30, 2023, the Supreme Court of the United States ruled a wedding website designer who has religious objections to same-sex marriage may legally refuse to design websites for same-sex couples because the First Amendment prohibits a state from forcing a website designer to create expressive messages with which the designer disagrees.

Quick Hits

  • The Supreme Court holds that the First Amendment prohibits states from forcing website designers from designing websites with messages with which the designer disagrees.
  • The ruling sides with a wedding website designer who sought to refuse to design wedding websites for same-sex couples because her religious beliefs oppose same-sex marriage.

In the 6–3 decision in 303 Creative LLC v. Elenis, the high court held that a Colorado law, which prohibits public accommodations from discriminating against individuals based on sexual orientation, could not compel a wedding website designer to create websites for same-sex couples despite her opposition to same-sex marriage because her work is expressive speech that is protected by the First Amendment.

The ruling provides greater clarity about whether wedding vendors may refuse to serve same-sex couples following the Supreme Court’s 2018 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission. In that case, the court issued a narrow ruling in favor of a bakery that refused to bake a wedding cake for a same-sex couple, but that ruling did not answer the question of whether antidiscrimination in public accommodations laws apply to businesses whose services are arguably expressive in nature.

Background

Lorie Smith, a website designer and founder of 303 Creative LLC, filed suit seeking to block the Colorado Civil Rights Commission from enforcing the state’s public accommodations law in a way that would prevent her from refusing to make wedding websites for same-sex couples. She further sought to not be prohibited from posting a statement telling potential customers that she will only create messages that are consistent with her faith.

The Colorado public accommodations law, known as the Colorado Anti-Discrimination Act (CADA), prohibits “a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group … the full and equal enjoyment of the goods [and] services” because of “sexual orientation.”

Smith alleged that she is willing to create custom websites for individuals who identify as “LGBT,” provided the sought messages do not conflict with her Christian faith and religious views. Regarding wedding websites, Smith alleged that it is her faith’s view and her sincerely held religious belief “that marriage is only between one man and one woman.”

Applying strict scrutiny, the U.S. Circuit Court of Appeals for the Tenth Circuit held that CADA would compel Smith to create speech with which she does not agree, but that CADA is narrowly tailored to a compelling interest to ensure “equal access to publicly available goods and services.” Smith then petitioned the Supreme Court over whether applying a public accommodations law to compel an artist to speak or stay silent violates the Free Speech clause of the First Amendment.

The Supreme Court’s Decision

Writing for the Court, Justice Neil Gorsuch stated that despite what public accommodations laws “forbidding business from engaging in discrimination have done to “secure the civil rights of all Americans,” Colorado in this case seeks to go beyond equal access to goods or services and seeks to “compel an individual to create speech she does not believe.”

Justice Gorsuch stated that a ruling for the state would force Smith into a difficult choice: “If she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs.” Under the state’s logic, the “government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected trait… Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty.”

Further, Justice Gorsuch rejected the state’s argument that Smith’s wedding websites are not really speech but an “ordinary commercial good,” noting that the state stipulated to the fact that she creates “original, customized creation[s] for each client.” The justice further rejected the state’s argument that Smith “objects to the protected characteristics of certain customers,” noting that the state stipulated to the fact that Smith is willing to make websites for “gay, lesbian, or bisexual clients” or organizations so long as the messages do not violate her personal beliefs.

However, Justice Sonia Sotomayor issued a dissenting opinion, which was joined by justices Elena Kagan and Ketanji Brown Jackson, calling the majority holding “profoundly wrong.” She stated that the decision is the “first time in” the Court’s history in which it “grants a business open to the public a constitutional right to refuse to serve members of a protected class.” Justice Sotomayor argued that by “issuing this new license to discriminate … the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.”

Key Takeaways

Public accommodations laws in the United States have long mandated businesses open to the public provide equal access to goods and services regardless of protected characteristics. However, the Supreme Court’s ruling in 303 Creative provides that the First Amendment prohibits states from requiring creative individuals or businesses that provide services that are expressive in nature, namely wedding vendors, to create messages with which they do not agree. Specifically, Justice Gorsuch mentioned artists, speechwriters, movie directors, muralists, and “[c]ountless other creative professionals” as being potentially affected.

Ogletree Deakins will continue to monitor developments and will provide updates on the Employment Law blog as additional information becomes available.

Follow and Subscribe                                                                                                                      LinkedIn | Twitter | Webinars | Podcasts

Authors


Browse More Insights

Practice Group

Employment Law

Ogletree Deakins’ employment lawyers are experienced in all aspects of employment law, from day-to-day advice to complex employment litigation.

Learn more

Sign up to receive emails about new developments and upcoming programs.

Sign Up Now