303 Creative LLC v. Elenis

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2023 U.S. Supreme Court case on free speech

2023 United States Supreme Court case

303 Creative LLC v. Elenis, 600 U.S. 570 (2023), is a United States Supreme Court decision that dealt with the intersection of anti-discrimination law in public accommodations and the Free Speech Clause of the First Amendment to the United States Constitution . In a 6–3 decision, the Court ruled in favor of a website designer, ruling that the state of Colorado cannot compel the designer to create work that violates her values. The case follows from _Masterpiece Cakeshop v. Colorado Civil Rights Commission _, 584 U.S. 617 (2018), which had dealt with similar conflict between free speech rights and Colorado's anti-discrimination laws but had been decided on narrower grounds.

Both Masterpiece Cakeshop and 303 Creative involved questions of whether a U.S. state's anti-discrimination laws can require designers to create works that recognize same-sex marriages , when same-sex marriage conflicts with those designers' beliefs. The decision in 303 Creative was seen by some as a victory for free speech rights as well as religious liberty and by others as a setback for LGBTQ rights and an assertion of discrimination as a type of free speech .

Background

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Per Smith's legal counsel and court filings, Lorie Smith received a request via the 303 Creative website from someone named "Stewart" inquiring about services, potentially including a website, for a wedding between themselves and "Mike". Based on his information in court filings, Stewart was contacted and stated he was straight and married to a woman, and also a web designer himself.[1] The origin of the apparently fake request is unknown and the request had no bearing on the outcome of the Supreme Court case.[2]

Smith is a website designer, running a limited liability company as 303 Creative, LLC. registered in Colorado. Smith had been selling website development services and wanted to move into making wedding announcement websites. Smith claimed it would have been against her Christian faith to make sites for same-sex marriages. She wanted to post a notice on her business website to notify users of her unwillingness to create websites promoting same-sex marriages, and instead would refer gay patrons to other potential designers who may provide services to them.[3]

Before implementing the notice, Smith discovered that such a notice would violate the Colorado state anti-discrimination laws that were amended in 2008, which prevent public businesses from discriminating against people based on their gender identity or sexual orientation.[4] [5] Smith, represented by the Alliance Defending Freedom (ADF), sued Colorado in 2016 in the United States District Court for the District of Colorado , seeking to block enforcement of the anti-discrimination law in a pre-enforcement challenge.

The district court waited for the result of the 2018 Supreme Court case _Masterpiece Cakeshop v. Colorado Civil Rights Commission _, which dealt with the same anti-discrimination law and also dealt with a business owner's refusal to provide wedding-related services to gay couples. As Masterpiece was ruled on narrow procedural grounds, finding that the Colorado agency that ruled against Jack Phillips (the cakeshop owner) was unfairly hostile to his religious beliefs, the district court accepted review of the pre-enforcement challenge,[6] but ruled against Smith and upheld the law's constitutionality in 2019.[7] [4] [5]

Smith appealed to the United States Court of Appeals for the Tenth Circuit . The Tenth Circuit took up Smith's pre-enforcement challenge, finding Smith had "sufficiently demonstrated both an intent to provide graphic and web design services to the public in a manner that exposes them to [Colorado Anti-Discrimination Act] liability, and a credible threat that Colorado will prosecute them under that statute."[8] [6] The Tenth Circuit still ruled in favor of the state in a 2–1 ruling.[9] In the majority ruling, the Tenth Circuit recognized Smith's pre-enforcement challenge that her First Amendment rights would be violated, but ruled that Colorado's anti-discrimination law satisfied strict scrutiny , deepening a circuit split with decisions issued by the Arizona Supreme Court and the United States Court of Appeals for the Eighth Circuit .[10] Chief Judge Timothy Tymkovich dissented from the Tenth Circuit's decision, writing "the majority takes the remarkable – and novel – stance that the government may force Ms. Smith to produce messages that violate her conscience."[3]

Supreme Court

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Smith filed a petition for a writ of certiorari , which the Supreme Court granted in February 2022. While the petition asked whether _Employment Division v. Smith _ should be overruled, the Supreme Court limited the case to the question of whether Colorado's law violates the Free Speech Clause of the First Amendment.[10] Unlike the previous decision in Masterpiece, where the court had a 5–4 majority of conservative justices, 303 Creative was heard under a 6–3 conservative majority following the retirement of Anthony Kennedy and death of Ruth Bader Ginsburg , replaced with Justices Brett Kavanaugh and Amy Coney Barrett , respectively. This new court was seen as more favorable to religious rights based on several key cases decided during previous terms.[4]

About 75 amicus briefs were submitted prior to oral hearings. Among those supporting Smith were 20 conservative-leaning states, law professors, several religious organizations, and libertarian-leaning think tanks such as the Americans for Prosperity Foundation and the Cato Institute . Those supporting the state of Colorado included twenty other liberal states, the Biden administration , law professors, and liberal-leaning groups such as Public Citizen , the American Civil Liberties Union , and the NAACP Legal Defense Fund .[4] [11] [12]

The case was argued on December 5, 2022. Court observers believed the conservative majority would favor Smith in that she should not be compelled to write speech against her faith, but were concerned about where to draw a line so that other anti-discrimination laws would not be affected by their decision.[[13]](https://en.wikipedia.org/wiki/303_Creative_v._Elenis

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