Is a website designer allowed to discriminate against gay couples under the First Amendment? In 303 Creative LLC v. Elenis , Monday’s Supreme Court considered this question. The court also considered two questions: Does a business have the right to refuse services to homosexual couples? And, does it have the right for them to publish a statement on the website explaining their religious reasons for doing so. Both questions should be answered no. The oral argument is not encouraging, suggesting that the answers could be yes. This would open the door for widespread discrimination against the LGBTQ community.
Colorado-based company 303 Creative LLC designs websites. Lorie Smith, the owner of 303 Creative LLC, has her sights set on expanding into wedding markets. She only wants to design websites for straight couples because same-sex marriages are not compatible with God’s will.
Unfortunately, there is not much evidence in Monday’s oral argument that suggests the Supreme Court will decide in Colorado’s favor.
Smith is wrong to refuse service to gay members of the public. Colorado prohibits shops, businesses and other public accommodations from discriminating based on sexual orientation. 303 Creative claims that Colorado’s antidiscrimination laws are incompatible with its First Amendment rights.
This case may make you feel like you’re back in the past. The 2018 Masterpiece Cakeshop LTD decision regarding a refusal to bake a wedding cake for a couple of same-sex men also raised religious liberty claims. The Supreme Court did not reach a conclusion regarding the free speech claim, but instead ruled in favor the bakery on narrow religiosity.
303 Creative v. Elenis is, however, a solely a case of free speech. It claims that by requiring it design a website for a married couple, it is violating the First Amendment’s free expression clause. This states that “Congress shall not make any law… abridging freedom of speech.”
To win, 303 Creative must prove that existing constitutional law is true. That providing website services to clients constitutes speech that is protected under the free speech clause. And that the government cannot justify possible infringement of the design company’s freedom to speech rights. (Speech rights are not absolute. Therefore, even speech rights might have to be subject to compelling government interests.
Although the first requirement might seem simple, 303 Creative’s proposal statement for its own website contains written words. If written words aren’t speech, what then? This question is complex. The colloquial meaning of speech does not always correspond to the constitutional sense of speech: Speech is sometimes not “speech”, but conduct and, therefore, not protected by the First Amendment. Sometimes, however, conduct counts as protected “speech.”
An example: If an American tells a foreign enemy national security secrets, it is speech. However, it would be considered treason, which is not protected under the free speech clause. Although a sign in a restaurant stating “We don’t hire Black people” may be words, it would be considered discrimination and not protected under the free speech clause.
The second issue’s proposed statement on website might not be considered speech. It all depends on the decision on the first issue. If 303 Creative is not allowed to refuse service to homosexual couples, then publishing a statement on the website stating that it won’t provide wedding services for gay and lesbian couples could be considered discriminatory conduct.
Conduct may also be considered constitutionally protected speech because it can convey a message. The classic example of this is lighting a draft card. Although a law prohibits the lighting of fires in public places, the act of burning a draftcard may be considered to be a form or expression of opposition to the draft. Therefore, the law could allow for free speech scrutiny. A law that bans conduct (burning) and also prohibits expressive conduct (burning draft cards to protest war crimes) is less likely to be unconstitutional.
This is the challenge: How to categorize 303 Creative’s refusal or making a website for gay couples? Is this pure speech? If so, Colorado’s law on public accommodations is unconstitutional. The government must prove that it is necessary to achieve a government goal. Does it constitute pure conduct? If it is, it doesn’t trigger, let alone violate, the freedom speech clause. Is it more like expressive conduct? It is protected by the free speech clause, but not at the same level of pure speech.
303 Creative claims that the challenged law regulates speech. The anti-discrimination statute requires that it create a website with words and images. However, this is not an accurate description of the law.
Colorado law prohibits companies from refusing to open their doors to people because of certain characteristics, such as sexual orientation. It’s a code of conduct. It might affect speech if the public accommodation is used by a website designer. However, the law is not intended to target speech. Its chances of becoming constitutional are therefore much greater than if it were pure speech.
However, because no constitutional right can be absolute, even a pure freedom of speech claim, the government must show a compelling reason to challenge the law. The compelling need in this case is to eliminate discrimination against gay and/or lesbian couples within public spaces. This is how government can ensure equal access to goods, services, and equal citizenship.
The oral argument Monday did not suggest that the Supreme Court would rule in Colorado’s favour. The majority of justices did not see the law as one that aimed at conduct. The conservative justices ignored the state’s desire to ensure that its LGBTQ citizens were not treated as second-class citizens, a trend established in previous cases. Monday’s rulings were dominated by justices from the right, who emphasized how people of good faith might not support same-sex marriage.
Most conservative justices ignored the state’s desire to ensure its LGBTQ citizens were not treated as second-class citizens.
This could have far-reaching implications beyond just wedding websites. If 303 Creative is found guilty, the court will not be able to discriminate against gay or lesbian persons. This would also apply to non-religious companies who oppose same-sex marriage, but could argue that their speech-based services to gay couples forced them to support that union. Any company that is hostile to gays and lesbians might argue that printing an invitation, taking their picture, or acting as their counsel or lawyer would be considered approval of homosexuality.
This right to discriminate will not be restricted to the LGBTQ community. Justice Ketanji Brown Jackson stated at oral arguments that the argument is similar to mall owners claiming free speech rights to limit Santa photos to white children if they are in conflict with their convictions.
Justice Sonia Sotomayor pointed out that this would be the first Supreme Court decision in which a commercial enterprise open to the public can refuse service to anyone based on race, sex or sexual orientation.
