Supreme Court Grants First Amendment Protection to Business Owner Despite Colorado’s Public Accommodation Law

This morning, in a 6-3 decision, the United States Supreme Court issued its ruling in 303 Creative LLC v. Elenis, finding in favor of the owner of a website design business who sued the state of Colorado because she feared Colorado’s public accommodation law would force her to convey website messages inconsistent with her belief that marriage should be reserved to unions between one man and one woman. The Court held that the Free Speech Clause of the First Amendment protected and excepted the owner from complying with Colorado’s law, reasoning Colorado could not require a website designer to create expressive designs that “defy her conscience” or “speak messages with which [she] disagrees.” With concern for the implications of the majority’s holding, the dissent wrote: “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”

The Issue Before the Court
Lorie Smith, on behalf of her website development company 303 Creative, brought a First Amendment challenge to the enforceability of Colorado’s Anti-Discrimination Act (CADA), which prohibits businesses open to the public from discriminating based on sexual orientation, among other protected characteristics. Specifically, Smith argued that it would conflict with her deeply held religious beliefs if she were required to create wedding websites for same-sex couples. To further frame her argument as a “free speech” issue, Smith asserted that her objection was to the message she would be creating on the websites, not to the customers themselves.

Colorado, in opposition to Smith’s claims, argued CADA regulates only the sales of a product or service—requiring that businesses open to the public not discriminate as to the customers served. CADA does not, Colorado argued, regulate the actual products or services being sold and, as such, it does not require or bar any speech implicating the First Amendment.

The Court agreed to hear Smith’s claim that CADA violated her freedom of speech; the Court declined, however, to hear her argument that CADA violated her right to free exercise of religion. Despite the Court’s refusal to hear Smith’s religious freedom argument, many predict the Court’s ruling will have a substantial impact on religious rights and their interplay with anti-discrimination laws.

The Court’s Rationale
As a threshold matter, the majority held that Smith’s creation of wedding websites constituted “pure speech protected by the First Amendment.” But the majority also acknowledged “public accommodations laws [such as CADA] play a vital role in realizing the civil rights of all Americans,” and that eliminating discrimination in public spaces is a “compelling interest.” Turning to CADA, the majority nevertheless concluded that Colorado was attempting to compel Smith to engage in speech she did not wish to provide, i.e., creating wedding websites celebrating same-sex marriages. The Court therefore held that CADA was in conflict with the Constitution, and that the Constitution—namely, the First Amendment and Smith’s freedom of speech—must prevail.

What Businesses Should Know About the Future of Public Accommodation Laws
Today’s opinion offers limited guidance on the types of businesses that may be excepted from the reach of public accommodations law on First Amendment grounds. To that point, the majority acknowledges that “determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions.”

Though the Court concluded Smith’s website development fell soundly within the scope of protected expressive activity, the opinion does not explicitly limit the holding to website developers. And many commentators have predicted that anything but an expressly narrow holding in Smith’s favor (which did not happen) could lead to more challenges by different types of businesses seeking to avoid the requirements of public accommodation laws. Until the scope of today’s decision becomes more clearly defined, the success or failure of such challenges is unknown.

In light of the majority’s holding, business owners may expect to see—and should be on the lookout for—changes to public accommodation laws in the states where they operate. Such changes may include carve-outs for certain industries, like the wedding industry, or for certain services considered sufficiently “expressive,” such as those offered by musicians or visual artists. Alternatively, public accommodations laws may be written or amended with a drastically narrower scope, applying only to essential service providers like those offering food or accommodations.
Whether clarification of the scope of today’s decision is pursued through legislative proposals or judicial challenges, one outcome appears certain: the majority’s decision has added another hurdle to the LGBTQIA+ movement and, perhaps even more broadly, to the fight for fair and equal treatment of other marginalized groups.