June 30, 2023

Supreme Court Decides 303 Creative, LLC v. Elenis

On June 30, 2023, the Supreme Court decided 303 Creative, LLC v. Elenis, No. 21-476, holding that the government may not compel an individual engaged in expressive activity protected by the First Amendment to provide speech that is contrary to that individual’s sincerely held beliefs.

303 Creative, LLC, offered custom services associated with designing websites and decided to expand those services to include designing webpages for couples’ weddings. The sole member-owner of the company, who effectuated the company’s work-product, believed that marriage should be available to only heterosexual couples and was fearful that if she began designing wedding websites, the State of Colorado would require that she offer those services to all couples, including non-heterosexual couples, pursuant to the Colorado Anti-Discrimination Act (CADA). Invoking the First Amendment of the U.S. Constitution, the owner, through her company, sued the State to preclude it from requiring her to design wedding websites for non-heterosexual couples.

The United States District Court for the District of Colorado rejected the owner’s claim and denied her the injunction she sought. On appeal, the United States Court of Appeals for the Tenth Circuit agreed. Applying strict scrutiny, the Tenth Circuit held that the State had a compelling interest in ensuring its citizens’ “equal access to publicly available goods and services” and no less restrictive alternative than enforcing CADA existed to protect that interest. The United States Supreme Court granted certiorari and reversed.

Explaining the premises that underlay its opinion, the Court instructed that the First Amendment: (1) protects all manner of speech and acts of expressive association, whether the government considers the content sensible, misguided, or likely to cause others pain; (2) prohibits the government generally from compelling speech it prefers, whether over silence or in conjunction with other voluntary speech, except in narrow contexts; and (3) protects an individual’s free speech rights whether the individual is speaking directly or through a corporate form, in a commercial context or otherwise.

Based on the facts to which the parties had stipulated, the Court agreed that the owner’s, and thus the company’s, individual, custom webpages constituted “pure speech” for First Amendment purposes and that at least some of that speech belonged to the owner, even if the final websites included speech from the company’s clients, as well. The Court then held that, if the State were to require the company (and thus the owner) to create wedding websites for non-heterosexual couples, the State would be compelling speech neither the company nor the owner desired to provide, in violation of the First Amendment.

The Court disagreed that the owner’s and company’s refusal to create wedding websites for non-heterosexual couples constituted discrimination against a protected class. Instead, it found that the owner and her company were willing to serve all potential customers, regardless of sexual orientation, but would refuse a request by any of them to create wedding websites that ran contrary to the owner’s sincerely held religious beliefs.

Finally, the Court noted that “eliminating discrimination in places of public accommodation” is a compelling government interest and confirmed that States generally may enforce even broad public accommodations laws, “including their provisions protecting gay persons,” against the vast array of businesses — except where, as it held to be the case here, such enforcement would violate the Constitution.

Justice Gorsuch delivered the opinion of the Court, in which Justices Roberts, Thomas, Alito, Kavanaugh, and Barrett joined. Justice Sotomayor filed a dissenting opinion, in which Justices Kagan and Jackson joined.

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