July 25, 2023
303 Creative LLC v. Elenis, No. 21-476, 600 U.S. ___, 2023 WL 4277208 (June 30, 2023) (Gorsuch, J.)
Response by Catherine J. Ross
Geo. Wash. L. Rev. On the Docket (Oct. Term 2022)
Slip Opinion | SCOTUSblog
The Real and the Phantom 303 Creative: Which Is More Dangerous?
In the lead up to the release of the Supreme Court’s 6–3 decision in 303 Creative LLC v. Elenis1 on the last day of the October 2022 term, media coverage was already mischaracterizing the case as centering on the rights of LGBTQ persons.2 As I explain below, that framing—which has only intensified since the decision came down—ignores the history of the litigation and the narrow question before the Court. Most commentators in the short time since then have proclaimed that the majority ruled against gays; they foresee a parade of horribles in which courts rely on 303 Creative to permit businesses to discriminate against a wide swath of disfavored groups.3 Unfortunately, by doing so, they exacerbate the likelihood that the majority opinion will be misused, giving rise to the very harms the critics—and the dissenters—most fear.
303 Creative pitted the rights of individuals against the power of the state, but the legal question never involved the rights of LGBTQ persons. When the case reached the Supreme Court, its parameters were largely limited to the question of whether the state violated the Speech Clause by compelling Smith to “utter what is not in [her] mind.”4 Scores of amici addressed different questions they wished the Court had taken up, including the scope of protection for LGBTQ people.5 The dignity and marketplace rights of the LGBTQ community permeated the case, but were not the issue before the Court or the basis of its analysis. Those issues were, however, the dissent’s focus, to which the majority countered: “It is difficult to read the dissent and conclude that we are looking at the same case.”6
303 Creative was not a case centering on gay rights or gay marriage, though it undeniably has implications for both. Nor was it a religious liberty case. The sole legal question was whether the state had the power to enforce antidiscrimination laws that compelled businesses serving the public to engage in speech at odds with their own beliefs.7 The conflict was framed squarely as one between the state’s demonstrated compelling interest in preventing private discrimination against, among others, LGBTQ persons and the asserted right of a business owner whose services involved her own expression not to be compelled to use her art to celebrate a same sex marriage which she regarded as false because it violated her religion.8 First Amendment doctrine has been clear for eight decades: It is impossible that “a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.”9 Given the posture of the case and the stipulated facts, the majority got it right.
Back in 2004, when the Court was less sympathetic to free exercise claims than it is today, the chief counsel of the conservative Liberty Legal Institute proclaimed, “the free exercise clause has been so reduced that you have to argue free speech to protect religious expression.”10 303 Creative built on that approach.
Citing the legal standard set out in Employment Division v. Smith,11 Lorie Smith, the plaintiff in 303 Creative, sought to be exempted from a neutral law of general applicability based on her sincerely held religious views.12
Justice Gorsuch’s opinion for the Court apparently accepts the sincerity of the religious belief which motivates Smith’s protest,13 but never addresses religious exercise head on. To the contrary, when it granted certiorari the Court declined invitations from both sides14 to consider whether it should overrule Smith and whether Colorado’s public accommodations law was in fact a neutral law of general applicability. The Court expressly limited certiorari to one question: “Whether applying a public accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment?”15
The Facts and Procedural History of the Case
Plaintiff-appellant Lorie Smith is a website designer who asserted that she planned to enter the wedding website design marketplace but feared that if she did so Colorado’s public accommodations law would subject her to penalties because she would refuse to design wedding sites for same sex couples.16 Smith, the sole proprietor of 303 Creative LLC,17 brought a preenforcement challenge to the application of the Colorado Anti-Discrimination Act (“CADA”) to her business.18 Litigants like Smith who demonstrate a credible fear that the state will interfere with their exercise of a constitutional right have standing to seek preenforcement clarification and relief.19
CADA applies broadly to all businesses that offer services to the public.20 It forbids distinctions among customers based on, among other things, sexual orientation.21 The law has two parts: first, an “Accommodation Clause” that forbids denial of services;22 and second, a “Communications Clause” that forbids a public accommodation from “publishing . . . any written . . . communication” indicating that a person in a protected class will be denied “the full and equal enjoyment” of the services offered or that they will be “unwelcome, objectionable, unacceptable, or undesirable.”23 Smith asserted that both parts of the statute placed her in legal jeopardy.24 She intended to deny wedding services to same-sex couples and to post a warning on her business website that she will not offer wedding designs for same-sex couples because of her religious beliefs.25
The federal district court considered the matter on cross-motions for summary judgment.26 It ruled for the state based on the “Communications Clause,” without reaching the “Accommodation Clause” questions.27 On appeal, a divided panel of the Tenth Circuit upheld the grant of summary judgment for the State of Colorado, though its reasoning differed from the district court’s.28
Colorado agreed to stipulations during proceedings in the district court that bound every stage of the litigation.29 The stipulations cut off many potential legal arguments that might have changed the trajectory of the case.
One set of stipulations amounted to a concession that Smith’s websites are personal expression protected by the Speech Clause: Smith’s websites are “expressive in nature,” “original,” and viewers would know that Smith designed the wedding websites as original artwork.30 In stipulating to these facts, the state waived several potential arguments, including: (1) an argument that Smith was not engaging in speech at all, let alone “pure speech,” which may have distinguished her from the baker in Masterpiece Cakeshop v. Colorado Civil Rights Comm’n31 because baking may be distinguished from web design and the baker had stature in the market that Smith may have lacked; (2) an argument that the speech would properly be attributed to the couple getting married and should not be attributed to Smith; and (3) an argument that a simple disclaimer on the site—e.g., “this is a message from Jim and Harry”—would suffice to resolve any confusion about who was speaking.
The state also stipulated that Smith “‘will gladly create custom graphics and websites’ for clients of any sexual orientation,” just not a website that “contradicts biblical truth.”32 In other words, Smith has no animus towards LGBTQ persons, potential clients, or clients.
Finally, the parties agreed that Smith’s belief that marriage is limited to one man and one woman was based on “a sincerely held religious conviction.”33 The parties also agreed that the wedding websites would “express Ms. Smith’s and 303 Creative’s message” including “her view of marriage.”34
The stipulated facts—which the state unsuccessfully tried to repudiate when the case reached the Supreme Court35—would prove largely dispositive. I cannot understand why Colorado’s attorneys signed them. The stipulations eliminated many questions that could have been litigated beyond those mentioned above including, but not limited to: What kinds of commercial services amount to speech? Is creating a website conduct or speech? Is a website just a commercial product like a widget? If creating a website is speech, whose speech is it? What makes an artist unique enough that the public needs access to their services? What test applies when a public accommodation seeks a religious exemption from regulation? Should the test be different at the intersection of exercise and speech, that is, if the regulation compels speech? And, is Smith’s desire to refuse service based on the potential clients’ identity and status as part of a protected class?
The Decision
A sharply divided Supreme Court reversed, holding that applying CADA to Smith would violate the Speech Clause because it would “compel [her] to create speech she does not believe.”36 From the outset, Justice Gorsuch’s majority opinion places the dispute in the line of cases protecting individuals’ freedom to refuse to express ideas that violate their beliefs, traced back to West Virginia State Bd. of Educ. v. Barnette.37 Barnette upheld the right of two sisters, members of the Jehovah’s Witnesses, to refuse to recite the pledge of allegiance in school because doing so violated their consciences.38 Critically, although their refusal stemmed from their religious beliefs, Justice Robert H. Jackson’s majority opinion—a rousing explication of why freedom of expression is so central to liberty—rests entirely on the Speech Clause and the right not to speak, regardless of the source or nature of one’s dissident views.39 Jackson traced the tradition of dissent through silence back to the early Christians who were persecuted for refusing to celebrate imperial authority—the problem of coerced speech was, he said, “well known to the framers of the Bill of Rights.”40 More recent cases, as the 303 Creative majority details, reinforce the principle that the “government may not compel a person to speak its own preferred messages.”41
As an initial matter, the majority accepted the stipulation that Smith’s potential website would be pure speech, fully protected by the First Amendment, that the website involved Smith’s own speech, as stipulated, and that any government regulation imposed on that speech was subject to strict scrutiny.42 The Court also concluded that Colorado sought to compel speech Smith did “not wish to provide . . . to ‘excis[e] certain ideas or viewpoints from the public dialogue.’”43 Indeed, Gorsuch noted, even as it held for the state, the Tenth Circuit concluded that eliminating “dissenting ‘ideas’ about marriage constitutes Colorado’s ‘very purpose’ in seeking to apply its law to Ms. Smith.”44
The majority emphasized that it “do[es] not question the vital role public accommodations laws play in realizing the civil rights of all Americans” and that “governments in this country have a ‘compelling interest’ in eliminating discrimination in places of public accommodation.”45 The opinion devotes several pages to the importance of antidiscrimination laws aimed at an expanded range of public accommodations and an expanding group of people who need protection, including from bias based on sexual orientation.46 Whether or not we take those assurances at face value—and the dissent certainly appears not to47—the majority opinion reinforces recognition of the compelling state interests at stake here.
However, the majority concludes, “[w]hen a state public accommodations law and the Constitution collide, there can be no question which must prevail.”48 As Barnette expounded, the Constitution “protects the citizen against the State itself and all of its creatures.”49 States, Justice Jackson underscored, must perform even their most important functions “within the limits of the Bill of Rights.”50
Justice Sotomayor, joined by Justices Kagan and Jackson, expressed the vehemence of her dissent by sharing it from the bench on the last day of the term,51 just as Justice Jackson had read aloud his stirring exhortation about individual liberty on Flag Day in 1943.52
The dissent recasts the case, all but ignoring the stipulated facts. Sotomayor correctly describes CADA as a “generally applicable law that prohibits discrimination in the sale of publicly available goods and services,”53 but goes on to say it only affects conduct54 notwithstanding the Communication Clause’s express regulation of public statements. And, she charges, the majority “shields” businesses engaged in expressive services from antidiscrimination laws, creating a “right to refuse service to a disfavored group.”55 If that summary were correct, the dissent would be right that the result would be “wrong. Profoundly wrong.”56
This requires us to take a closer look at the dissent’s reasoning and its characterization of the Court’s holding.
Sotomayor posits that any burden CADA places on speech is merely “incidental” because the statute aims at commerce and conduct.57 Incidental regulation of speech in a statute aimed at conduct does not trigger strict scrutiny; instead, the courts use a far more forgiving intermediate standard.58
Despite invoking O’Brien—which only requires the government to show that the regulation serves a “substantial” interest”59—the first section of the dissent, some fifteen pages, sets out the importance of public accommodations laws, the common law history of duties to serve all comers, the role of public accommodations laws in addressing injustices based on various statuses including race, sex, and disabilities and—in particular—contemporary discrimination against LGBTQ people who deserve dignity, freedom, and equal access to goods and services.60 “All they seek,” she writes, is “[t]o inhabit public spaces on the same terms and conditions as everyone else.”61
None of this was disputed. Every judge who wrote or signed an opinion in 303 Creative agreed the state has more than a substantial interest—indeed a compelling one62—precisely because discrimination based on sexual orientation remains a widespread problem which states should have the power to address.
There is, however, a problem with Sotomayor’s analysis even in this section of the dissent: She conflates cases that do not implicate any expressive rights with those that involve inhibitions on pure or incidental speech. For example, Sotomayor relies heavily on cases in which businesses sought exemptions from the Civil Rights Act of 1964,63 such as the seminal desegregation case Heart of Atlanta Motel v. United States.64 There, the motel owner claimed it offended his personal beliefs to rent rooms to Black customers.65 His speech rights were not at issue.66
Heart of Atlanta Motel is inapposite to 303 Creative in several ways. Most important, the motel owner had no cognizable personal liberty claim,67 and the Court found none in the other cases in this line relied on by Justice Sotomayor.68 He certainly could not have claimed his speech rights were being infringed. No freedom of expression could be at stake unless the act of handing over a room key is understood as a symbolic expression that “I approve renting rooms to Blacks”—a ludicrous stretch.
Indisputably, as the dissent demonstrates, proprietors have sought exemptions from public accommodations laws ever since the government began enacting them.69 Sotomayor correctly posits that “the refusal to deal with or serve a class of people is not an expressive interest protected by the First Amendment.”70 That observation has no bearing on this case, because Smith did not claim that refusing to provide any kind of service—e.g., renting a space or chairs for a ceremony—based on the customer’s status would be expressive, nor was that proposition briefed, argued, or considered by the Court.
Smith never claimed, as the dissent would have it, that she had a right to “refuse service to a disfavored group.”71 The state stipulated as much when it agreed that Smith offered her other services to members of the group whose weddings she declines to recognize as “real.”72 In this way too, Smith should not be confused with the motel owner in Heart of Atlanta.
To be sure, the dissent got a lot right. LGBTQ people are at peril—they have reason to feel unsafe and to fear newly recognized rights like the right to marry may be undermined, sabotaged, or withdrawn.73 We may take the disclaimers Justice Gorsuch offers at face value, but that does not mean that every Justice who joined the majority opinion is committed to protecting people from discrimination based on their sexual or gender identification, much less to preserving the right to marry a person of the same sex.74
The dissent’s parade of horribles reaches far and wide beyond discrimination against gender nonconformists. Dissenters fear that what they view as the doctrine announced by the majority—businesses may define their goods as expressive and rely on that assertion to refuse services to members of protected groups—would “nullify” public accommodations laws.75 They predict too that the doctrine will extend beyond public accommodations to employment and other realms.76 The “logic” of the decision, Sotomayor writes, “threatens” to allow refusals to cater to interracial marriages, people with disabilities, and the right to discriminate can be claimed by large corporations as well as individual proprietorships.77 The dissenters predict that photographers who take passport photos could “sell ‘passport photos for white people.’”78 I’ve never seen an “artistic” photo for an official document like a passport and am hard pressed to understand how taking a passport photo of a Black person could amount to compelled speech.
I share the dissent’s concerns about the status, dignity, and safety of people whose sexual identity or orientation are outside the mainstream, and yet it is imperative that we engage with the opinion the Court issued, not the one the dissent conjured up. On its own terms, the Court’s opinion only applies in limited circumstances. The facts include: services in the public marketplace; a commercial offering that involves pure speech by an artist; a state regulation compelling the artist to express views that conflict with their own beliefs and that will be attributed to the speaker; and a same sex wedding.79 Other circumstances can be distinguished, at least for now.
By refusing to engage the majority opinion directly, the dissent threatens consequential damage to the very causes that forcefully animate the dissenters. Justice Sotomayor’s failure to grapple with the stipulated facts, the narrow question before the Court, and the confines of the majority opinion denies the modest scope of the opinion Justice Gorsuch actually wrote. In doing so, the dissent fosters both unintentional and pretextual misunderstandings of what the case stands for. It exacerbates the real-world risk that the Court’s ruling will encourage discrimination and mounting claims for exemptions. The dissent’s parade of horribles all but invites conservative activists, religious zealots, and outright bigots to test the limits of 303 Creative. It may encourage litigants to challenge a variety of antidiscrimination laws—perhaps even beyond those the dissenters anticipate—even where the public accommodation does not arguably or convincingly engage in speech.
In the roughly two weeks since the case was decided, the legal mischief has already begun. A hair salon in Traverse City, Michigan, erroneously asserting that a “small business has a right to refuse services,” told transgender persons to take their business elsewhere—specifically to “a local pet groomer.”80 A Roman Catholic parochial school represented by the Becket Fund for Religious Liberty cited 303 Creative in a filing to the Court of Appeals for the Fourth Circuit to claim that its firing of a teacher who was in a same sex marriage was “expressive association” protected by the Speech Clause.81 And in the most ludicrous stretch, a Texas judge—a public official who has been ordered to preside over same sex marriages—says she will rely on 303 Creative to vindicate her demand for a religious exemption to the requirements of the job she performs as the state itself.82
303 Creative will surely spawn abundant litigation in the lower courts. Right now, it is hard to say whether the opinions in those cases are more likely to forge limiting principles or to expand 303 Creative’s boundaries beyond recognition as the dissenters fear. As a pragmatic matter, I urge advocates for the dignity and rights of those who suffer discrimination to cabin the case within the narrow confines of its facts, its analysis, and its holding.
Professor Catherine J. Ross is Lyle T. Alverson Professor of Law Emerita at the George Washington University Law School. She has written extensively on the First Amendment, including two books on the Speech Clause, A Right to Lie? Presidents, Other Liars, and the First Amendment (2021) and Lessons in Censorship: How Schools and Courts Subvert Students’ First Amendment Rights (2015).
Recommended Citation
Catherine J. Ross, Response, 303 Creative LLC v. Elenis, Geo. Wash. L. Rev. On the Docket (July 25, 2023), https://www.gwlr.org/303-creative-elenis-response/.
