Colorado Wedding Artists Muzzled: 303 Creative v. Elenis
By John A. Sparks
The October term of the U.S. Supreme Court has begun. The previous term yielded some “blockbuster” decisions, and the new term seems likely to produce more of the same. One of these is the case 303 Creative v. Elenis.
Lorie Smith, doing business in the Denver, Colorado area as “303 Creative, LLC,” is seeking to be able to expand her commercial web-design business into the wedding website market. However, she is being prevented from doing so by a Colorado “public accommodations” law. Colorado and other states have laws which are intended to prevent discrimination based on, among other things, sexual orientation by businesses who are open to the general public. Smith’s proposed wedding websites are personalized and would “celebrate and promote the couple’s wedding and unique love story by combining custom text, graphics and other media.”
Smith holds a traditional Christian view of marriage as a union between one man and one woman. Therefore, she states that she would not be able, in good conscience, to produce website products that run contrary to her biblical faith commitments and beliefs. However, under Colorado Anti-Discrimination Act (CADA), if she refuses to provide websites for “same sex unions,” she risks being in violation by her refusal. Moreover, if she simply seeks to announce on her business site that she is unable to use her artistry to further messages which are contrary to her faith, she is also in violation. Violations trigger fines, cease and desist orders, required reporting, and other conditions that some have described as “re-education,” all of which are burdensome and costly to a business.
Smith sensibly chose not to risk breaking the same law that she knew had been used against another Colorado-based Christian business (Masterpiece Cakeshop v. Colo C.R. Commission) in a similar situation. Instead, she sought a preliminary court injunction against CADA’s sanctions being enforced against her. Six years later, her lawsuit has finally made it through the lower federal courts to the Supreme Court. During this time, she could not safely expand her artistry into wedding website market. The Supreme Court, in agreeing to hear her appeal, limited its inquiry to whether CADA as applied to her web design business was an unconstitutional restraint on speech.
What will happen next?
First, the court must decide whether the creation of a wedding website is an exercise of “speech.” At first blush, it may seem strange to regard website creation as “speech.” However, the courts long ago recognized that the meaning of speech does “not end at the spoken or written word” (Texas v. Johson). For instance, the Supreme Court has held that wearing black arm bands to school in order to protest the Vietnam War, as well as picketing in labor disputes, are both examples of the exercise of “speech.” In the 303 Creative case, graphics, images, and of course words, were put together to produce a wedding website. That expressive product certainly appears to constitute speech under previous case law. In fact, the lower court which last reviewed this case, the U.S. 10th Circuit Court of Appeals, has already conceded that Smith’s wedding website creations are “pure speech.” That question seems to have already been resolved in the affirmative.
Next, the court would decide if the requirements of CADA infringe upon Smith’s freedom of speech. The facts tell the story. In order to avoid violating CADA, Lorie Smith would have to be willing to artistically design and create wedding websites that celebrated marriages, such as same-sex unions, to which she has deeply held religious objections. Put another way, to break into the wedding market, she would have to create wedding websites containing content that the state forces upon her but which she rejects as a matter of personal conviction.
What Colorado and CADA are requiring of Smith runs counter to a nearly 80-year-old doctrine called the “compelled or coerced speech” doctrine. This doctrine, derived from the First Amendment speech clause, maintains that besides being free to speak, citizens also have a right to be free from being compelled to speak a message mandated by the government or another person.
The oldest and best-known case embodying this idea is W. Va. State Board of Education v. Barnette (1943). There, the court ruled that public school children who were Jehovah’s Witnesses could not be required to salute the flag and say the pledge of allegiance, which was against their religion’s teaching. In that case, the court based its decision in support of the children upon their not being obliged by law to express a message contrary to their own beliefs or convictions. This is precisely what CADA is requiring of Lorie Smith. That should be the end of it.
Smith and her lawyers will have to counter the claim that if she were to create a website for a same-sex union she would not be supporting that view herself, but instead merely conveying the view of marriage endorsed by the couple. However, expressive wedding artistry involves the artist personally embracing and celebrating the subject of her artistry. As her lawyers argue in their brief, “Smith is not a passive conduit for someone else’s message.” She is an intimately involved participant in the finished product. Worse, the requirements of CADA force her to spend some of her limited time and imagination 1) proclaiming and furthering unions with which she disagrees, and 2) taking time away from the message of biblical marriages which she set out to further through her work.
Smith has a strong case against Colorado for another reason. CADA is a “content-based” law. Content-based laws are those which target speech because of the content of the speech; that is, because of the position taken by the speaker. Here the content that Lorie Smith seeks to further—a biblical view of marriage—is unwelcome and considered biased and discriminatory. The content of her “speech” conveyed by her wedding websites is unfavored by Colorado law. Since the court has held that content-based laws like this “are presumptively unconstitutional,” it should strike down the CADA as applied to 303 Creative. Nonetheless, Colorado may argue that if it can prove that it still had a compelling reason for CADA, it can stand.
The government is rarely able to meet this high standard. Speech is a fundamental, constitutionally protected right. For Colorado to directly or indirectly restrict it is an extremely serious matter. Colorado will maintain that it is seeking to eliminate various types of discrimination which prevent Colorado citizens from market access to goods and services. Smith’s first answer to that claim is that, in fact, she willingly serves gays and lesbians in providing her general website services. It is only when clients insist upon a message which she cannot in good conscience provide that she refuses service. For example, if a gay horse trainer asked her to create a website for his stables, she would have no problem providing a site that promoted his equestrian business.
Secondly, it is clear that other providers would be willing to offer wedding website services to gays and lesbians because these vendors do not have the religious scruples possessed by Smith. To argue that potential clients wanting a wedding website would be unable to find a firm to craft one in the greater Denver area is to practice willful ignorance. Here, note that the 10th Circuit Court of Appeals, recognizing that the claim of “exclusion from market access” did not hold water, concocted a finding that Ms. Smith’s services were so unique that they constituted a kind of “monopoly” of quality and skill which could not be duplicated by any other website provider. This is judicial gymnastics at its worst.
Finally, Smith can successfully argue that Colorado has defined “public accommodations” too broadly while other states have limited its definition to essentials, like food, shelter, and medical care.
The centerpiece of liberty—freedom of speech—cannot yield to the new use and abuse of public accommodations laws like the Colorado Anti-Discrimination Act.
Dr. John A. Sparks is the retired Dean of Arts & Letters, Grove City College and a Fellow in the Institute for Faith and Freedom. He is a member of the state bar of Pennsylvania and a graduate of Grove City College and the University of Michigan Law School. Sparks writes regularly for the Institute on Supreme Court developments.
