U.S. Supreme Court’s Free Speech Decision in 303 Creative—a Return to a Dangerous Past?

BY J. DENISE DISKIN AND DALLAS AGUILERA MARTINEZ 

On June 30, 2023, the United States Supreme Court issued its opinion in 303 Creative LLC v. Elenis,¹1 303 Creative LLC v. Elenis, __ U.S. __, 143 S. Ct. 2298, 216 L. Ed. 2d 1131 (2023). holding that Colorado could not enforce its state anti-discrimination law against a Christian website designer who does not want to create wedding websites for gay and lesbian couples because doing so would violate the designer’s First Amendment right to free speech.

While some proponents of free speech and religious freedom lauded the decision, other advocates, particularly within communities of color and LGBTQ2S+²2 LGBTQ2S+ is an acronym for Lesbian, Gay, Bisexual, Transgender, Queer, and Two Spirit. The “+” indicator is meant to capture the many diverse gender identities, expressions, and sexual orientations present in the United States, and which have existed in cultures and communities around the world for generations. Many other abbreviations for this broad and diverse community are commonly used, including LGBTQ+, LGBTQIA, etc. communities, are concerned that the holding sets a frightening precedent, marking the first time the Court “grants a business open to the public a constitutional right to refuse to serve members of a protected class.”³3 303 Creative, 143 S. Ct. at 2322 (Sotomayor, J., dissenting).

Colorado has long been a site for challenges to anti-discrimination laws, particularly in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, where a Lakewood, Colorado, baker refused to create a wedding cake for a gay couple and was held by the Colorado Civil Rights Commission to have violated state anti-discrimination law.⁴4 Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, 138 S. Ct. 1719, 201 L. Ed. 2d 35 (2018). The United States Supreme Court skirted directly addressing the baker’s free exercise rights to refuse service, but instead determined that his rights were violated when the Commission showed “animus” to his religious beliefs in its administrative process.⁵5 Id.

Washington courts have also handled such challenges—most notably, in State v. Arlene’s Flowers, wherein the owner of a floral shop refused to serve a gay couple seeking flowers for their wedding due to the owner’s religious beliefs. The florist raised a First Amendment speech challenge, but the Washington Supreme Court determined that arranging flowers was conduct, not speech, and that floral arrangements lack the requisite likelihood that a particular message would be understood from that conduct.⁶6 187 Wn.2d 804, __, 389 P.3d 543 (2017). The U.S. Supreme Court vacated the court’s decision and remanded it for further consideration in light of Masterpiece Cakeshop⁷,7 Arlene’s Flowers, Inc. v. Washington, 138 S. Ct. 2671 (2018) (mem.). to ensure that no similar anti-religious animus had affected its consideration. The Washington Supreme Court ultimately affirmed its decision and found that their prior decision had not been tainted by anti-religious animus.⁸8 State v. Arlene’s Flowers, Inc., 193 Wn.2d 469, 480, 41 P.3 1203 (2019).

The history of anti-discrimination protections, like the Washington Law Against Discrimination (WLAD) and the Colorado Anti-Discrimination Act (CADA)⁹9 Colo. Rev. Stat. §24-34-601(1). at issue in 303 Creative, is barely a century old. But while the process of creation and building can be slow and subtle, destruction can be swift and abrupt. 

Background and Decision

Lorie Smith is the owner of 303 Creative, a Colorado business offering website and graphic design, marketing advice, and social media management services.¹⁰10 303 Creative, 143 S. Ct. at 2307. Smith sought to expand her services to couples seeking website design services for their weddings, but worried that if she did so, Colorado would “force her to convey messages inconsistent with her belief that marriages should be reserved to unions between one man and one woman” by enforcing its anti-discrimination laws to compel her to create websites serving all couples.¹¹11 Id. At 2308. She claimed to be “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender,” and to be willing to “‘gladly create custom graphics and websites’ for clients of any sexual orientation.”¹²12 Id. At 2309.

Unlike the owners of Masterpiece Cakeshop and Arlene’s Flowers, however, Smith had not refused to create such a website for any particular couple when she brought her claim, had never been the subject of a discrimination complaint regarding such a refusal, and had not experienced any state enforcement of anti-discrimination law.¹³13 Smith, represented by the Alliance Defending Freedom, initially claimed that she received a request for her website contact form to create a wedding website for a same-sex couple. The factual claim went unexamined during litigation but now appears to have been fabricated, as the request came within days of her filing her legal claim against Colorado, and when contacted by a reporter in 2023, the person alleged to have made the request had no knowledge of it, had been married in a heterosexual relationship since well prior to the alleged request, and had lived in another state since well before Smith opened her business. See Sam Levine, “Key document may be fake in LGBTQ+ rights case before US supreme court,” The Guardian, June 29, 2023, www.theguardian.com/law/2023/jun/29/supreme-court-lgbtq-document-veracity-colorado. Instead, her standing derived from having established a “credible threat that, if she follows through on her plans to offer wedding website services,” Colorado will invoke its anti-discrimination law to “force her to create speech she does not believe or endorse.”¹⁴14 Id.

Nevertheless, represented by Alliance Defending Freedom,¹⁵15 Alliance Defending Freedom is a Southern Poverty Law Center-identified anti-LGBTQ2S+ hate group that has represented each of the business owners discussed in this article with nearly identical legal arguments. See www.splcenter.org/news/2020/04/10/why-alliance-defending-freedom-hate-group. Smith filed suit, claiming a First Amendment exemption from Colorado’s anti-discrimination law. The case eventually made its way to the United States Supreme Court without a significant challenge to Smith’s standing to bring her claim, whereupon the Court granted certiorari on the question of whether Smith’s free speech rights were unconstitutionally infringed by Colorado’s law.  

Importantly, while Smith was motivated by her religious belief that gay, lesbian, and other same-sex couples should not be permitted to marry, the Court decided that it was her right to free speech, and not her right to religious expression, that had been infringed. The decision, therefore, exempts all owners and employees of “expressive” businesses¹⁶16 The parties here stipulated that Smith’s creation of wedding websites was “expressive in nature.” 303 Creative, 143 S. Ct. at 2309. She would use “images, words, symbols, and other modes of expression,” creating an “original, customized” site to “celebrate and promote the couple’s wedding and unique love story” and to “celebrat[e] and promot[e]” the marriage. Id. at 2312. The majority distinguished Smith’s expressive services from “the dissemination of purely factual and uncontroversial information.” Id. at 2317. to refuse to create any work that would conflict with their personal beliefs, establishing a new normal for anti-discrimination protections and the standing necessary for business owners to claim exemptions. 

Writing for the majority, Justice Neil Gorsuch held that Colorado’s law would “force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.” Effectively, Justice Gorsuch posited, the law would force Smith to choose between following the law and following her conscience. Justice Gorsuch compared Smith’s dilemma to ones where the “government could require ‘an unwilling Muslim movie director to make a film with a Zionist message,’ or ‘an atheist muralist to accept a commission celebrating Evangelical zeal,’” or a gay website designer to create websites for a group advocating against same-sex marriage, so long as these speakers would accept commissions “for other members of the public with different messages.”¹⁷17 303 Creative, 143 S. Ct. at 2314. Finding that Colorado’s law forces Smith to speak in ways which defy her conscience, though her views may be “unattractive,” “misguided, or even hurtful,” Smith’s free speech argument prevailed.¹⁸18 Id. At 2321. 

Is it the Message or the Group?

We are lawyers who have advocated for LGBTQ2S+ rights for many years, and we are LGBTQ2S+ individuals who have personal experience with discrimination in employment, housing, parenting, and yes, even our wedding services. Justice Gorsuch’s sanitized analysis of Smith’s claims belies the actual function of discrimination, which is to turn away an individual from services they would be otherwise able to access if they were not a member of a particular group. The Court’s comparisons to movie directors, muralists, or gay website designers are inapposite because each of those projects can be rejected without intrinsically rejecting a group of people. For example, Zionists hold many different religious beliefs, so rejection of a Zionist film project rejects the message, not the Christians, Jews, or others who hold Zionist beliefs. Similarly, because there is no particular sexual orientation or religious group that uniquely rejects same-sex marriage (indeed many in the LGBTQ2S+ community do not endorse marriage for gays and lesbians because of their religious beliefs, or reject marriage entirely due to its patriarchal history), a gay website designer could freely reject a website project denouncing same-sex marriage without rejecting heterosexual people, Christians, or any other particular group. 

Smith, as did the owners of Masterpiece Cakeshop and Arlene’s Flowers, maintained that she had no issue with serving LGBTQ2S+ people; it was any project conveying support for same-sex marriage that she rejected.¹⁹19 Id. at 2317. But while a heterosexual couple might request her services to build a wedding website which also conveys a message of marriage equality (an unusual circumstance at best), that couple could, faced with Smith’s statement of her conflicting beliefs, choose to excise the message of marriage equality from their website plans, could reach some other compromise message with Smith, or could choose another website designer. They would leave the interaction perhaps upset on behalf of their family or friends, but without a sense that their marriage was unwelcome. A gay or lesbian couple does not have the option of compromise—there is no way for them to be who they are and use Smith’s services.²⁰20 It is beyond the scope of this article to evaluate why neither the majority nor the dissent addressed the broad body of case law holding that discrimination based on conduct (same-sex marriage) is too intrinsically related to status (sexual orientation) to be distinguishable. See State v. Arlene’s Flowers, 187 Wn.2d 804, __, 389 P.3d 543 (2017). See also Christian Legal Soc’ty Chapter of Univ. of Cal. V. Martinez, 561 U.S. 661,672,688, 130 S. Ct. 2971, 177 L. Ed. 2d 838 (2010) (student organization was discriminating based on sexual orientation, not belief or conduct, when it excluded from membership any person who engaged in “‘unrepentant homosexual conduct”’; thus, the university’s antidiscrimination policy did not violate First Amendment protections); Elane Photography LLC v. Willock, 2013-NMSC-040, 309 P.3d 53 (2013) (“[t]o allow discrimination based on conduct so closely correlated with sexual orientation would severely undermine the purpose of the NMHRA.”).

Our country has experienced eras where a business owner was free to communicate their desire to selectively conduct their services; they did so with messages like “Whites Only,”²¹21 www.loc.gov/rr/print/list/085_disc.html. “No Dogs, Negroes, or Mexicans,”²²22 www.loc.gov/exhibits/civil-rights-act/segregation-era.html#obj024. or “No Irish Need Apply.”²³23 www.nytimes.com/2015/09/08/insider/1854-no-irish-need-apply.html. While such discrimination is experienced differently and with varying historical weight by members of various protected groups, the unifying conclusion is that discrimination “threatens not only the rights and proper privileges of [Washington’s] inhabitants but menaces the institutions and foundations of a free democratic state.”²⁴24 RCW 49.60.010 (WLAD; Purpose of Chapter). In other words, if the United States is to realize the vision of being a free democratic state, the Court must understand and correct for the imbalances of power that arise from personal biases, not create legal exemptions for them.  

And this is the particularly insidious danger that the precedent set by 303 Creative presents: By resting her argument on her religious beliefs about LGBTQ2S+ people but achieving a much broader holding applicable to free speech rights generally, Smith has leveraged the recently acquired, limited legal protections afforded of LGBTQ2S+ communities to produce a decision we read as a shift backward toward our country’s ugly history of discrimination motivated by one group’s use of social and political power to subjugate another. 

What Pre-Enforcement Standing Leaves Out

A second significant precedent set by 303 Creative is that the United States Supreme Court ruled on Smith’s claims prior to any enforcement action by the state of Colorado against her business. As a result, there is no factual record to describe the demonstrated harm her discrimination would have caused.  

Admittedly, most constitutional litigation takes place on a pre-enforcement basis, and a plaintiff has standing if she “alleges an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.”²⁵25 Susan B. Anthony List v. Driehaus, 573 U.S. 149, 134 S. Ct. 2334, 189 L. Ed. 2d 246 (2014). But as recently as 2021, the United States Supreme Court held that “this Court has always required proof of a more concrete injury and compliance with traditional rules of equitable practice[,]” and that the chilling effect of a potentially unconstitutional law is not enough to automatically justify pre-enforcement review.²⁶26 Whole Women’s Health v. Jackson, __ U.S. __, 142 S. Ct. 522, 538, 211 L. Ed. 2d 316 (2021). In other words, the Court could have declined to hear Smith’s claim on the grounds that she had not sufficiently proven the injury posed to her by Colorado’s law, but it opted to rule on her claims nonetheless. 

A pre-enforcement ruling—one where Smith could reasonably imagine consequences for violating Colorado’s anti-discrimination law—deprives courts as well as communities of a full understanding of the balance resting at the core of anti-discrimination law. Anti-discrimination laws deem a wide array of harms to be unlawful, but it is up to the individuals experiencing the harm to articulate why the treatment they experienced violated the law, how it impacted them, and how much. The harm claimed by the plaintiff must be real, and it must be tested. Smith underwent no such process. Her claim of harm—whether she would in fact have to turn away gay and lesbian clients, whether any of those clients might report her business for discrimination, and if they did, whether Colorado would in fact penalize her business or grant an exemption, was left unexamined. As a result, there was no opportunity for the court to consider the impact of Smith’s desired business practices on others—the only story the court heard was Smith’s own.

Community Impacts

The harms caused by businesses refusing services to LGBTQ2S+ people and other marginalized communities are well established. For example, other individuals who have experienced wedding-related service refusals report intense emotional experiences, including feeling “[they] weren’t good enough to be served in their own community,” feeling “very sad and stressed” and “dread[ing] her own wedding.”²⁷27 Caitlin Rooney and Laura Durso, “The Harms of Refusing Service to LGBTQ People and Other Marginalized Communities,” American Progress, Nov. 29, 2017, www.americanprogress.org/article/harms-refusing-service-lgbtq-people-marginalized-communities/. And services are not easily replaced: between 10 and 20 percent of LGBTQ2S+ people surveyed in 2017 said it would be “very difficult” or “not possible” to find the type of service they were denied at another establishment.²⁸28 “The Harms of Refusing Service to LGBTQ People and Other Marginalized Communities,” American Progress, Nov. 29, 2017, www.americanprogress.org/article/harms-refusing-service-lgbtq-people-marginalized-communities/. This rises to between 20 and 40 percent when isolated to suburban and rural LGBTQ2S+ individuals.²⁹29 Id.

It is tempting to read the black-letter law of 303 Creative and determine that it is firmly cabined in a narrow category of artistically expressive businesses. But to do so is to pretend Smith’s discrimination is something other than what it is: a single cell in a broader social cancer. Prior to the 303 Creative decision, a 2022 Center for American Progress³⁰30 The Center for American Progress is an independent, nonpartisan policy institute that conducts research and analysis on a broad range of social issues. survey found that experiences of discrimination within LGBTQ2S+ communities are rampant and defy isolation. Half of surveyed LGBTQ2S+ individuals reported experiencing workplace discrimination in the prior year; 30 percent reported housing discrimination (including harassment by housemates or neighbors).³¹31 Caroline Medina and Lindsay Mahowald, “Discrimination and Barriers to Well-Being: The State of the LGBTQI+ Community in 2022,” American Progress, Jan. 12, 2023, www.americanprogress.org/article/discrimination-and-barriers-to-well-being-the-state-of-the-lgbtqi-community-in-2022/. More than half of transgender and nonbinary individuals reported negative experiences with doctors or other health care providers in the prior year, with 23 percent reporting the provider made “religious statements” about their gender identity; and nearly 10 percent reported “physically rough or abusive” behavior.³²32 Id. Racism is inextricably intertwined into these experiences: LGBTQ2S+ people of color are nearly 15 percent more likely than white LGBTQ2S+ people to have experienced discrimination in the past year; when disaggregated by race, people of color nearly universally report higher rates of a wide variety of specific discriminatory experiences.³³33 Id.

It is indisputable that LGBTQ2S+ communities, and particularly LGBTQ2S+ communities of color, are disproportionately harmed by these experiences long-term. According to the American Psychological Association, “Dealing with discrimination results in a state of heightened vigilance and changes in behavior, which in itself can trigger stress responses—that is, even the anticipation of discrimination can cause stress.”³⁴34 American Psychological Association, quoted in “The Harms of Refusing Service to LGBTQ People and Other Marginalized Communities,” American Progress, Nov. 29, 2017, www.americanprogress.org/article/harms-refusing-service-lgbtq-people-marginalized-communities/.

Unmeasured, however, are the losses to our broader communities when categorical biases like Smith’s are not only privately held but publicly expressed. How else might this outcome be applied as a vehicle to openly deprive people of dignity through the loss of public accommodations? 303 Creative’s holding places even more power into the hands of those whose viewpoints are overrepresented politically and socially, exempting them from responsibility for the negative impact of their behavior toward not just LGBTQ2S+ and communities of color but anyone whose identity group is the subject of others’ prejudices. In this case, Smith based her exclusion of expressive services on just one facet of her religious convictions, but how much social impact are an individual’s convictions entitled to cause?

The 303 Creative decision has already begun to embolden business owners to freely exercise their prejudices. For example, this summer a salon owner in Michigan declared on a neighborhood Facebook page that she would no longer serve transgender clients, saying, “If a human identifies as anything other than a man/woman please seek services at a local pet groomer. You are not welcome at this salon.”³⁵35 Molly Olmstead, “Citing ‘Free Speech,’ a Michigan Hair Salon Refuses to Serve Transgender People,” Slate, July 11, 2023, https://slate.com/news-and-politics/2023/07/traverse-city-salon-supreme-court-discrimination.html. It is a shocking statement to have been made publicly, and its presence in a community debases not only the speaker but everyone who lives within its reach.  

While it is premature to discuss all of the prospective impacts of this decision, it is reasonable to expect they will be far reaching, because the Court placed no clear limiting provisions in the holding. It will, as it so often does, fall to those who are marginalized already to prove that bias has harmed us, to place limits on the definitions of expressive activity, and to push back over and over again when a business claims an exemption it is not entitled to. 

As advocates, we cannot afford to distance ourselves with the false truths Smith posited—that she would serve LGBTQ2S+ people but not our marriages, and that her exemption from compliance with state law prohibiting discrimination is necessary in order to protect other expressive businesses from being forced to create content that conflicts with their personal views. 303 Creative demonstrates that the legal system is, above all things, a malleable system, as subject as any other to the evolution of social and political bias. As attorneys, we owe a duty to our communities to continue to advocate for a legal system that holds our families, beliefs, and businesses open to one another.  

NOTES

1. 303 Creative LLC v. Elenis, __ U.S. __, 143 S. Ct. 2298, 216 L. Ed. 2d 1131 (2023).

2. LGBTQ2S+ is an acronym for Lesbian, Gay, Bisexual, Transgender, Queer, and Two Spirit. The “+” indicator is meant to capture the many diverse gender identities, expressions, and sexual orientations present in the United States, and which have existed in cultures and communities around the world for generations. Many other abbreviations for this broad and diverse community are commonly used, including LGBTQ+, LGBTQIA, etc.

3. 303 Creative, 143 S. Ct. at 2322 (Sotomayor, J., dissenting).

4. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, 138 S. Ct. 1719, 201 L. Ed. 2d 35 (2018).

5. Id.

6. 187 Wn.2d 804, __, 389 P.3d 543 (2017).

7. Arlene’s Flowers, Inc. v. Washington, 138 S. Ct. 2671 (2018) (mem.).

8. State v. Arlene’s Flowers, Inc., 193 Wn.2d 469, 480, 41 P.3 1203 (2019).

9. Colo. Rev. Stat. §24-34-601(1).

10. 303 Creative, 143 S. Ct. at 2307.

11. Id. At 2308.

12. Id. At 2309.

13. Smith, represented by the Alliance Defending Freedom, initially claimed that she received a request for her website contact form to create a wedding website for a same-sex couple. The factual claim went unexamined during litigation but now appears to have been fabricated, as the request came within days of her filing her legal claim against Colorado, and when contacted by a reporter in 2023, the person alleged to have made the request had no knowledge of it, had been married in a heterosexual relationship since well prior to the alleged request, and had lived in another state since well before Smith opened her business. See Sam Levine, “Key document may be fake in LGBTQ+ rights case before US supreme court,” The Guardian, June 29, 2023, www.theguardian.com/law/2023/jun/29/supreme-court-lgbtq-document-veracity-colorado.

14. Id.

15. Alliance Defending Freedom is a Southern Poverty Law Center-identified anti-LGBTQ2S+ hate group that has represented each of the business owners discussed in this article with nearly identical legal arguments. See www.splcenter.org/news/2020/04/10/why-alliance-defending-freedom-hate-group. 

16. The parties here stipulated that Smith’s creation of wedding websites was “expressive in nature.” 303 Creative, 143 S. Ct. at 2309. She would use “images, words, symbols, and other modes of expression,” creating an “original, customized” site to “celebrate and promote the couple’s wedding and unique love story” and to “celebrat[e] and promot[e]” the marriage. Id. at 2312. The majority distinguished Smith’s expressive services from “the dissemination of purely factual and uncontroversial information.” Id. at 2317.

17. 303 Creative, 143 S. Ct. at 2314.

18. Id. At 2321.

19. Id. at 2317.

20. It is beyond the scope of this article to evaluate why neither the majority nor the dissent addressed the broad body of case law holding that discrimination based on conduct (same-sex marriage) is too intrinsically related to status (sexual orientation) to be distinguishable. See State v. Arlene’s Flowers, 187 Wn.2d 804, __, 389 P.3d 543 (2017). See also Christian Legal Soc’ty Chapter of Univ. of Cal. V. Martinez, 561 U.S. 661,672,688, 130 S. Ct. 2971, 177 L. Ed. 2d 838 (2010) (student organization was discriminating based on sexual orientation, not belief or conduct, when it excluded from membership any person who engaged in “‘unrepentant homosexual conduct”’; thus, the university’s antidiscrimination policy did not violate First Amendment protections); Elane Photography LLC v. Willock, 2013-NMSC-040, 309 P.3d 53 (2013) (“[t]o allow discrimination based on conduct so closely correlated with sexual orientation would severely undermine the purpose of the NMHRA.”).

21. www.loc.gov/rr/print/list/085_disc.html. 

22. www.loc.gov/exhibits/civil-rights-act/segregation-era.html#obj024. 

23. www.nytimes.com/2015/09/08/insider/1854-no-irish-need-apply.html. 

24. RCW 49.60.010 (WLAD; Purpose of Chapter).

25. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 134 S. Ct. 2334, 189 L. Ed. 2d 246 (2014).

26. Whole Women’s Health v. Jackson, __ U.S. __, 142 S. Ct. 522, 538, 211 L. Ed. 2d 316 (2021).

27. Caitlin Rooney and Laura Durso, “The Harms of Refusing Service to LGBTQ People and Other Marginalized Communities,” American Progress, Nov. 29, 2017, www.americanprogress.org/article/harms-refusing-service-lgbtq-people-marginalized-communities/.

28. “The Harms of Refusing Service to LGBTQ People and Other Marginalized Communities,” American Progress, Nov. 29, 2017, www.americanprogress.org/article/harms-refusing-service-lgbtq-people-marginalized-communities/.

29. Id.

30. The Center for American Progress is an independent, nonpartisan policy institute that conducts research and analysis on a broad range of social issues.

31. Caroline Medina and Lindsay Mahowald, “Discrimination and Barriers to Well-Being: The State of the LGBTQI+ Community in 2022,” American Progress, Jan. 12, 2023, www.americanprogress.org/article/discrimination-and-barriers-to-well-being-the-state-of-the-lgbtqi-community-in-2022/.

32. Id.

33. Id.

34. American Psychological Association, quoted in “The Harms of Refusing Service to LGBTQ People and Other Marginalized Communities,” American Progress, Nov. 29, 2017, www.americanprogress.org/article/harms-refusing-service-lgbtq-people-marginalized-communities/.

35. Molly Olmstead, “Citing ‘Free Speech,’ a Michigan Hair Salon Refuses to Serve Transgender People,” Slate, July 11, 2023, https://slate.com/news-and-politics/2023/07/traverse-city-salon-supreme-court-discrimination.html.