303 Creative LLC v. Elenis

Term Year 2022, Docket 21-476

Summary

The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.

What is at issue

The case revolves around the Colorado Anti-Discrimination Act (CADA) § 24-34-601 and its potential impact on Lorie Smith of 303 Creative. Although the pre-enforcement challenge in this case has sparked significant discussion, similar approaches have been taken in the past.

CADA draws inspiration from the Civil Rights Act of 1964, containing comparable language focused on public services and the prevention of access denial.

CADA

§ 24-34-601 (2a) It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or, directly or indirectly, to publish, circulate, issue, display, post, or mail any written, electronic, or printed communication, notice, or advertisement that indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation will be refused, withheld from, or denied an individual or that an individual’s patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable because of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, national origin, or ancestry.

Title II Of The Civil Rights Act (Public Accommodations)

42 U.S.C. §2000a (a)All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination on the ground of race, color, religion, or national origin.

The claim against the constitutionality of these laws is grounded in the infringement of First Amendment rights.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This case is part of a longstanding series of disputes where the Civil Rights Act clashes with the Constitution, particularly the First Amendment. Numerous cases are cited within this particular case.

Speech and expression

When examining the application of the First Amendment, the fundamental concepts of speech and expression come to the forefront. Merriam-Webster’s legal definition of pure speech is “the communication of ideas through spoken or written words or through conduct limited in form to that necessary to convey the idea.” This definition is juxtaposed with symbolic speech, which refers to “conduct intended to convey a particular message likely to be understood by those viewing it.”

In her dissent, Justice Sotomayor referenced United States v. O’Brien, stating that “the Court upheld the application of a law against the destruction of draft cards to a defendant who had burned his draft card to protest the Vietnam War. The protester’s conduct was unquestionably expressive. In fact, it constituted political expression, which lies at the core of the First Amendment.” Commentary on the constitution here explains that “a government regulation is sufficiently justified if it falls within the constitutional power of the Government, furthers an important or substantial governmental interest unrelated to the suppression of free expression, and the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. This intermediate standard is related to the idea that even regulations of pure speech may sometimes be justified if they solely regulate the time, place, or manner of the speech—focusing on non-content elements of the speech.” The confusion deepens when considering that within “pure speech,” some argue that their religious freedoms are infringed only when specific religious words or texts are spoken or written, rather than when their spoken words, such as support for same-sex marriage in this case, address what is true or false. This debate is captured effectively in the oral arguments here.

Elena Kagan

There’s no scripture, there’s no ideology, there’s no nothing.

Kristen Kellie Waggoner

There is ideology.

And this Court has already recognized that there is ideology and different views on marriage.

And the Court’s promise in Obergefell is to protect those who would believe marriage is between a man and a woman from having to express a view that violates their conscience.

But I think –

Elena Kagan

Okay.

So I think that if I understand you, you’re saying, yes, she can refuse because there’s ideology just in the fact that it’s Mike and Harry and there’s a picture of these two guys together.

Kristen Kellie Waggoner

That is speech.

You are announcing a wedding.

And if you believe the wedding to be false, then the – the government would be compelling you to say something that you otherwise wouldn’t say, which makes it –

Elena Kagan

So –

Kristen Kellie Waggoner

– content-based.

Elena Kagan

– so it’s really nothing about the content of this speech.

I mean, it could be Mike and Pat and you don’t actually even know whether Pat is a woman or a man.

There’s really nothing about the content of this speech, am – am I right? In your case, you have, like, scripture examples, and so that might, you know, be different maybe, but you’re being forthright and saying it’s really not about that.

It’s nothing about the content of the speech.

It’s just that the content is being – what – what – whatever the graphics and typefaces and, you know – you know, which hotels are – you know, have been reserved for the wedding, it’s being used in a same-sex marriage.

Kristen Kellie Waggoner

No, it’s not about the use.

It – what it’s about when a person is creating speech, it is what is the message that they are expressing.

The Hurley framework asked this Court to first look at is their speech, and there clearly is words, graphics, text, videos, pictures.

That’s speech, and it’s generally protected. The second is to ask is the speaker’s message affected.

And when you’re requiring a speaker to create a message to celebrate something that they believe to be false, you’re compelling their speech and it’s affecting their message.

Ketanji Brown Jackson

So their message is not actually the content of the website.

I mean, this is Justice Kagan’s point.

We could have a situation in which the identical website is being offered, one to Harry and Ann and one to Harry and Steve, but everything on the website is exactly the same. I think I hear you saying that the message that the designer would be sending when she offered the website to Harry and Steve would be different and contrary to her beliefs, and so – so it’s – it’s the implicit message that she’s endorsing that wedding –

Kristen Kellie Waggoner

No.

Ketanji Brown Jackson

– that’s the problem.

Kristen Kellie Waggoner

No, she’s not – it’s not about whether she’s endorsing it.

She’s not speaking through anything but creating a speech. And when you switch out those names, you’re switching out the concept and the message that is actually in the website.

Here, both Justice Kagen and Brown Jackson question the content of speech, but only when it involves specific “magic words” related to scripture or a particular ideology. Waggoner argues that there is no isolated “upper story” of sacred language separate from the “lower story” of purely secular actions. Christian actions also express their beliefs, not just in private but also in public. There exists a holistic Christian worldview that speaks through both words and actions, which cannot be separated.

After the oral arguments, the Federalist Society hosted a forum to discuss the case. Prof. Andrew Koppelman discusses the potential implications of hypothetical scenarios for future cases:

The puzzle in this case is you sort of what counts as expressive in nature you can stipulate whatever you want you can say you know well I have a right to exclude those people who I believe to be infested by demons but the idea that courts are going to have to decide in future cases what it means to be infested by demons is not a workable rule

He then moves away from the argument that all actions are expressive:

so I I think the puzzle in here is what are the boundaries of what counts as expressive in nature? Is it the intentions of the producer? Is it the amount of care that goes on? If Ollie’s barbecue declines to serve blacks but the cook at Ollie’s barbecue, for each individual customer, arranges the ribs in a custom pattern based on the geometrical pattern that is brought to mind to the chef does that mean that Ollie’s barbecue is expressive in nature now and can exclude African Americans? You know what really worries me about this is the malleability of this category and you know so the stipulation is no help with that.

He quickly dismisses the possibility that businesses should be free from rules that dictate whom they can deny service, as doing so would leave him vulnerable to accusations of discrimination.

In concluding the discussion on speech, it is important to note that both forms of freedom of speech, pure and symbolic, are not explicitly granted in the Bible. Our freedom or lack thereof is tied to Jesus Christ. Our speech is either enslaved to sin or free in Christ, not as a human right but as a Biblical freedom (John 8:31-38). However, regardless of whether we have the freedom of speech in the United States or are in a nation hostile to the Gospel, there are commands to speak truth in love (Eph. 4:15), irrespective of laws permitting or restricting such speech. Declaring that a same-sex wedding is false is speaking the truth, warning those engaged in sin against our Creator God to repent and turn to the love found in Christ. Whether in the United States with “freedom of speech” or in a more hostile nation, the question remains: “How are they to believe in him of whom they have never heard? And how are they to hear without someone preaching? And how are they to preach unless they are sent? As it is written, ‘How beautiful are the feet of those who preach the good news!’” (Rom 10:14-15)

Selling in public

In her dissent, Justice Sotomayor applied the act of selling a website to a public service.

“At common law, innkeepers, smiths, and others who ‘made profession of a public employment,’ were prohibited from refusing, without good reason, to serve a customer.” - Lane v Cotton common law

She further adds:

“[W]here-ever any subject takes upon himself a public trust for the benefit of the rest of his fellow-subjects, he is eo ipso bound to serve the subject in all the things that are within the reach and comprehension of such an office, under pain of an action against him. . . . If on the road a shoe fall off my horse, and I come to a smith to have one put on, and the smith refuse to do it, an action will lie against him, because he has made profession of a trade which is for the public good, and has thereby exposed and vested an interest of himself in all the King’s subjects that will employ him in the way of his trade.” Lane v. Cotton, 12 Mod., at 484, 88 Eng. Rep., at 1464.

What is really at issue here is the status of a private business as a “public trust”. There seems to be many such conflations of what the government and “public” are required to do and what private businesses and citizens are required to do. So many times the government wants to hold it’s citizens to the same rules that apply to itself. The private postmasters in the Lane v. Cotton case were seen as obviously liable for loss of packages and could be held so. This case was saying when the public postmaster took over the role of a private business, they were also liable. And if you read the Constitution to limit the government’s role in citizen’s lives this reading is exactly backwards. Not that the private businesses ARE public trusts, but when the government takes over what has been done by private entities they are held liable like they had been before for the loss of goods.

However, it can be argued that Christians have a duty to help their brothers and sisters, as seen in Deut. 22:1-4:

You shall not see your brother’s ox or his sheep going astray and ignore them. You shall take them back to your brother. And if he does not live near you and you do not know who he is, you shall bring it home to your house, and it shall stay with you until your brother seeks it. Then you shall restore it to him. And you shall do the same with his donkey or with his garment, or with any lost thing of your brother’s, which he loses and you find; you may not ignore it. You shall not see your brother’s donkey or his ox fallen down by the way and ignore them. You shall help him to lift them up again.

It is an act of love to assist those in need, even if it is someone you may despise, encountered on the side of the road. The parable of the Good Samaritan exemplifies this concept:

But a Samaritan, as he journeyed, came to where he was, and when he saw him, he had compassion. He went to him and bound up his wounds, pouring on oil and wine. Then he set him on his own animal and brought him to an inn and took care of him. And the next day he took out two denarii and gave them to the innkeeper, saying, ‘Take care of him, and whatever more you spend, I will repay you when I come back.’ Which of these three, do you think, proved to be a neighbor to the man who fell among the robbers?” He said, “The one who showed him mercy.” And Jesus said to him, “You go, and do likewise.” (Luke 10:33-37)

Expanding on this, the greatest commandment states:

You shall love the Lord your God with all your heart and with all your soul and with all your strength and with all your mind, and your neighbor as yourself.” (Luke 10:27)

This is the law of God that we are to follow through the grace of Jesus, who freed us from bondage. However, as when it comes to the Bible’s stance on free speech, it is essential to recognize that what is being done for the neighbor is a lie and ultimately harmful to both their body and soul. Loving our neighbor through acts of service does not mean endorsing the sin in their life. Love comes alongside them, helping them turn away from their sinful ways, because without the grace of God, we too would be suppressing the truth in unrighteousness. Building a website for a same-sex couple is not an act of love.

Protected Classes

Another reason why civil rights cases often conflict with Biblical law is because they often involve partiality rather than blind justice. At its best, it may be seen as redemptive partiality, seeking to rectify past injustices by imposing further injustice on someone else. Protecting a gay person at the expense of a Christian is not equal or impartial justice. It takes sides while trying to appear impartial, as appropriately symbolized by Lady Justice.

God tells us, “You shall do no injustice in court. You shall not be partial to the poor or defer to the great, but in righteousness shall you judge your neighbor” (Leviticus 19:15). This principle applies not only to the poor and the rich—”You shall hear both the small and the great alike. You shall not be intimidated by anyone, for the judgment is God’s. If a case is too difficult for you, you shall bring it to me, and I will hear it” (Deut. 1:17)—but to any form of partiality. A hypothetical scenario raised by Justice Coney Barrett during the oral arguments highlights this issue effectively:

Amy Coney Barrett

Well, it might be an unusual case, but the problem and what a lot of the hypotheticals are getting at is however we decide this case obviously applies to others. And what if we say it’s not The New York Times, but what if we say that it’s a gay rights group that wants to publish gay rights announcements online all year round, not just for gay pride month, because it wants to celebrate love in that community, and so it publishes only same-sex marriage announcements and turns away opposite sex.

Eric R. Olson

Well –

Amy Coney Barrett

Can the gay rights organization do that?

Eric R. Olson

Right.

I think there that’s very unlikely to be a public accommodation, so the answer is likely yes, but –

Amy Coney Barrett

Well, they’re paid. Why? I mean, they’re paid.

I mean, they – they craft these for – it’s a business, it’s a commercial enterprise, but they craft these announcements for the gay community.

Eric R. Olson

I guess – who crafts the announcements? I thought it was –

Amy Coney Barrett

So it’s a – it’s a – it’s a – it’s a gay rights enterprise.

It’s a – it’s a group run by, you know, people who are interested in promoting gay rights, and it’s a forum to celebrate gay marriage.

They charge. You make money, and you run marriage announcements that have our story, et cetera, but it’s done specifically to celebrate love in that community.

Can they turn away opposite-sex marriage announcements?

Eric R. Olson

So, in this unusual hypothetical, assuming they’re a public accommodation, they cannot turn away announcements based on a protected characteristic.

So they couldn’t turn around – turn away opposite-sex announcements or interracial marriages, I think, if they’re a public accommodation.

But I think the –

Amy Coney Barrett

So they can be compelled to – it’s not – it’s not that they have anything against opposite-sex unions, but they can be compelled to give their, you know, web space to those – to those announcements even though it’s not consistent with the message of their organization?

Eric R. Olson

Again, assuming they’re a public accommodation and opening themselves to the public –

Amy Coney Barrett

Yes, assuming they’re –

Eric R. Olson

Yes, they – they can be –

Amy Coney Barrett

– a public accommodation.

Eric R. Olson

– they can do that, but I think what makes the hypothetical difficult is that that assumption likely does – does not apply to most organizations like that that we talked –

Amy Coney Barrett

But it seems like you can’t get out of everything by defining public accommodation narrowly or broadly depending on it.

I mean, you agree that in Hurley the parade was a public accommodation, as we held? Because Hurley is your hardest case, right?

Eric R. Olson

It’s a difficult case, but it – but we are different than Hurley, and I’m happy to talk about why.

But the public accommodation law was applied to the parade in Hurley, and the Court said that was – because of the peculiar circumstances there, it was inappropriate. But, importantly, in Hurley, everyone could march in the parade.

The only issue was who could carry the banner in the parade.

And, in this case, people can’t march in the parade. The company is turning away people for their products based solely on who they are, and that’s the big difference from here and Hurley.

Amy Coney Barrett

Thank you.

Olson struggles to justify why individuals belonging to “protected classes,” such as a gay rights group, are not considered a public service while a Christian providing a website is. The only discernible distinction appears to be an act of injustice where the blindfold of impartiality is removed, favoring one group over another arbitrarily and sinfully.

Judicial interpretation

When the Civil Rights Act and CADA clash with the First Amendment, the question arises about how we should interpret the Constitution: as a living document or through a particular form of originalism. This debate mirrors the theological hermeneutics debate between the grammatical-historical method and what Machen referred to as liberalism. Should our interpretation of the First Amendment involve a strict application by considering the original intentions of the authors, or should it be updated to address modern issues and potentially alter the original meaning? Those in favor of a living document and “Christian” liberalism share a relativistic view of truth and reality. They believe that the shifting morals of today should reshape the understanding of past documents. In their perspective, speaking against same-sex couples is considered wrong today, so both the Bible and the Constitution need updating to accommodate modern-day sodomy. Both documents should be revised to allow for the manipulation of justice through partiality. Both documents need to be updated because there couldn’t be a objective standard of morality that could tell me what is right and what I need to do or be condemned by a holy God.

Conclusion

The court ruled in favor of Lorie Smith and 303 Creative. Justice Gorsuch, in his opinion for the court, stated, “The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. Because Colorado seeks to deny that promise, the judgment is reversed.” This ruling is a victory for true speech and enables everyone to speak the truth of Christ into the world. True speech is protected by this decision by protecting free speech, while also ensuring that no one is compelled to express a message they disagree with. Ideally, this ruling will shift the court’s decisions in favor of truth and freedom in similar cases moving forward, including potential decisions on speech on social media platforms.