SCOTUS Review: 303 Creative v. Elenis
One of the most interesting cases on the 2023 Supreme Court docket this past year was the case of 303 Creative LLC v. Elenis, Docket No. 21-467.
Objective
In this case, Lorie Smith, the owner, and creator of 303 Creative LLC is a website designer who crafts a range of websites, including but not limited to: Dog Breeding websites, Roofing company websites, and, most relevantly, Wedding websites. Smith charges a fee for said websites to be created.
Lorie Smith also resides in the state of Colorado, which currently abides by legislation referred to as the ‘Colorado Anti-Discrimination Act’ or CADA. The Act prohibits any business open to the public, within state premises, from rejecting solicitors of the listed good or service on account of sexual orientation, among other things.
The issue arrived on the desks of U.S. Supreme Court Justices because the website creator, Lorie Smith, did not want to create Wedding websites for any same-sex couple even though her business falls under the aforementioned ‘public accommodation’. However, because of the active legislation in the State of Colorado, she must not refuse service on the basis of sexual orientation.
Lorie Smith and Petitioners reject this idea, claiming that government regulation of her free will to create or not create a wedding website, is “unconstitutional”.
In addition to not serving same-sex couples, Smith would also like to publish a statement on her website that details her objections to same-sex marriages.
Taken Directly from the Colorado State Website, onecolorado.org:
Colorado’s anti-discrimination laws guarantee equal access to public accommodations, housing, and employment regardless of disability, race, creed, color, sex, sexual orientation (including transgender status), marital status, family status, religion, national origin, or ancestry.
Prohibited discriminatory practices in places of public accommodation include these adverse actions: denial of service, terms and conditions, unequal treatment, failure to accommodate, and retaliation.
Protected classes for places of public accommodation are: race, color, disability, sex, sexual orientation (including transgender status), national origin/ancestry, creed, marital status, and retaliation.
Petitioners for 303 Creative LLC.
Lorie Smith, the owner of 303 Creative LLC, claims that Compelled Speech Doctrine, an aspect of the First Amendment that holds that the ‘government cannot force an individual or group to support certain expression’, is being violated.
In an opening statement made by court petitioner Kristen K. Waggoner, she claimed that Lorie Smith, “serves all people, deciding what to create based on the message, not who requests it.” On a base level, Waggoner is asserting that her client is not discriminating against a certain group of people, and rather should have the right to decline projects when they “violate her conscience.”
Waggoner continues by citing that her client creates speech through her creation of customized websites and that Colorado’s Anti-Discrimination Law affects the message Smith is able to lawfully create.
Overall, Waggoner’s argument was one rooted in the stance that Smith is not belligerently trying to discriminate against groups of people, instead, she is only trying to create websites that subscribe to her beliefs.
An interesting aspect of this argument, as brought up by the Court, is what if Lorie Smith used a plug-and-play website? The hypothetical describes a situation in which the website designer receives an inquiry to create a website exactly like Harry and Sally’s wedding website, only this time the inquiring customers are homosexual. If the website designer uses the exact same format and simply inputs the information the homosexual couple provides to her, is she still creating speech if she is using the same website formula? Justice Barett and Brown specifically pressed this point. Asserting that Smith is not creating speech, because it is not her, the website designer’s story.
Waggoner, the Petitioner, considered this hypothetical inaccurate, saying that whether or not only the names and stories were swapped out from the heterosexual couple to the homosexual couple, the design of the website is still considered to be a message. Whether or not the speech is the same, the message is different because one marriage she condones due to biblical beliefs and the other she does not.
Respondents to 303 Creative LLC.
I think one of the strongest arguments brought before the Supreme Court, in this case, is the example provided by Eric R. Olson, an attorney representing the Respondents. In his opening statement, Olson formulated a hypothetical about a Retail Christmas Store and Website-seller that features biblical quotations.
The scenario was as follows; “The company can choose to sell websites that only feature biblical quotes describing a marriage as between a man and a woman, just like Christmas stores can choose to sell only Christmas-related items.” Olson continued by saying, “ The company just cannot refuse to serve gay couples, as it seeks to do here, just as a Christmas store cannot announce no Jews allowed.”
This argument draws the conclusion that because 303 Creative LLC is a public accommodation, it must still service the homosexual couple the same way it services the heterosexual couple, irrespective of religious beliefs. In other words, Lorie Smith can make it evident by using religious language that she believes to be true, as is her right under the first amendment (i.e., highlighting a biblical verse of quote on her bookings page). However, Lorie Smith, being a business owner of a public accommodation cannot outright deny service, provide unequal treatment, or not accommodate the homosexual couple on the grounds that they are homosexual.
Furthermore, the Respondents are making it evident that this case is less about Lorie Smith’s right to free speech, and more about Smith providing the good/service of website creation to the paying client. The argument is that if Smith can deny service on the grounds of sexual orientation, where is the limit to which a public accommodation can be discriminatory? Can Smith rule that she no longer wishes to serve inter-racial couples or disabled couples on the grounds of religious or moral beliefs?
Resources
Transcript of SCOTUS case: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/21-476_d18f.pdf
Oral Arguments of SCOTUS case: https://www.supremecourt.gov/oral_arguments/audio/2022/21-476
Additional Websites:
https://www.scotusblog.com/case-files/cases/303-creative-llc-v-elenis/
https://www.mtsu.edu/first-amendment/article/933/compelled-speech#:~:text=The%20compelled%20speech%20doctrine%20sets,group%20to%20support%20certain%20expression.
https://www.oyez.org/cases/2022/21-476