Supreme Court Sides With Colorado Web Designer’s Free Speech Claim

Lorie Smith worried Colorado would use its anti-discrimination laws to force her to create websites celebrating marriages she does not endorse.

The First Amendment’s guaranty of free speech prohibits a Colorado public accommodations law from forcing a website designer with Christian beliefs to create messages with which she disagrees, the United States Supreme Court ruled.

A 6-3 majority favored the designer in its decision published in June of 2023 (303 Creative LLC v. Elenis, 600 U.S. ___). Although the ruling drew from speech—rather than religious—protections found in the First Amendment, the outcome represents another in a long line of victories for religious liberty proponents dating back more than a decade.

Churches and church leaders will find the 303 Creative ruling important in at least one way. It demonstrates the possible ways a church can assert First Amendment defenses if the church falls under a state or local public accommodations law and gets penalized for violating the law due to its religious activities.

‘A credible threat’ of penalty

The Colorado Anti-Discrimination Act (CADA) bars places of public accommodation from discriminating based on disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, national origin, or ancestry in the provision of goods and services to the public.

The law first drew attention from the Supreme Court several years ago. That’s when Colorado’s civil rights division sanctioned a bakery owner for refusing to make a cake for a same-sex couple’s wedding. Lower courts affirmed the state’s actions.

But in 2018, a 7-2 ruling from the Supreme Court reversed the lower court decisions and returned the case to Colorado for reconsideration. The court said the record showed the civil rights division exhibited hostility toward the baker’s religious beliefs, violating his constitutional rights (Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018)).

During the Masterpiece Cakeshop litigation, the website designer filed her lawsuit. She became worried CADA would require her to create wedding websites for same-sex couples, which goes against her religious beliefs.

The state had yet to sanction her. But her lawsuit was allowed to proceed because she established “a credible threat that . . . Colorado will invoke CADA to force her to create speech she does not believe or endorse,” wrote Justice Neil Gorsuch in the Supreme Court’s majority opinion.

Such a threat violated the designer’s free speech rights, the Court decided.

“[I]n this particular case Colorado does not just seek to ensure the sale of goods or services on equal terms,” the Court held. “It seeks to use its law to compel an individual to create speech she does not believe.”

The Court also ruled that “no public accommodations law is immune from the demands of the Constitution . . . and when a state public accommodations law and the Constitution collide, there can be no question which must prevail.”

Creating customized messages

The designer operates a graphic design business. She wanted to expand it to include services for couples seeking websites for their weddings. Her websites will provide couples with text, graphic arts, and videos to “celebrate” and “convey” the “details” of their “unique love story.”

A created website will be “expressive in nature,” designed “to communicate a particular message.” That message includes how the couple met, their backgrounds, and their families. It also includes their future plans and information about their upcoming wedding.

All text and graphics will be “original,” “customized,” and “tailored” creations.

The designer’s company name will also appear on every web page created.

The designer said her graphic design business is open to customers regardless of their race, creed, sex, or sexual orientation.

But by expanding her company’s services to include wedding websites, she worried Colorado’s public accommodations law would “force her to convey messages inconsistent with her belief that marriage should be reserved to unions between one man and one woman,” the Court noted.

The designer acknowledged her views about marriage may be unpopular.

But, the Court said, she insisted the Constitution protects such a view.

A district court rejected the designer’s claims. A federal appeals court affirmed the district court’s decision. The designer then appealed to the Supreme Court.

The Supreme Court’s decision

The Supreme Court began its majority opinion by noting if there is any “fixed star in our constitutional constellation,” it is the principle that the government may not interfere with “an uninhibited marketplace of ideas.” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 642 (1943).

The Court continued:

The First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well-intentioned or deeply “misguided,” and likely to cause “anguish” or “incalculable grief.” And equally, the First Amendment protects acts of expressive association. . . . Generally, too, the government may not compel a person to speak its own preferred messages.

The Court noted the designer’s unique, customized wedding websites qualified as “pure speech,” entitling her to the maximum protection under the First Amendment guarantee of free speech, and concluded:

In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. In the past other States … have similarly tested the First Amendment’s boundaries by seeking to compel speech they thought vital at the time. But, as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong. Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider “unattractive,” “misguided, or even hurtful.” But tolerance, not coercion, is our Nation’s answer. 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 [district court’s] judgment is reversed.

Relevance to church leaders

This case protects Christian business owners from potential liability under public accommodations laws when goods or services involve speech.

But there is another aspect of this ruling that may be of even greater importance to churches. The Court majority emphasized that constitutional protections will prevail anytime they “collide” with a state public accommodations law. This is especially notable, given the uncertainties that often arise for churches whose activities may or may not fall under state and local public accommodations laws.

The first public accommodations laws were enacted by a few states in the late 19th century. That number has steadily increased and by 2023 most states have enacted such a law.

But public accommodations laws vary by state. To illustrate:

  • All public accommodation laws bar places of public accommodation from discriminating against patrons based on several enumerated categories, including some, or all of, the following: race, color, national origin, gender, religion, disability, marital status, and sexual orientation.
  • In recent years, a growing number of state public accommodation laws have banned discrimination based on marital status, sexual orientation, and sexual identity. According to the National Conference of State Legislators, “18 jurisdictions prohibit discrimination based on marital status, 25 prohibit discrimination based on sexual orientation, [and] 24 prohibit discrimination based on gender identity.”
  • Some state laws exempt religious organizations, but others contain no explicit exemption.

Many pastors employed by conservative congregations worry public accommodations laws may be used to compel them to accommodate persons who do not share the church’s biblical worldview or values.

Learn more: Search public accommodations laws, including ones affecting your church, through Church Law & Tax’s 50-State Public Accommodations Laws Report, a downloadable resource.

An oft-mentioned concern pertains to the use of church property. To illustrate, assume that a church with an orthodox view of marriage and human sexuality rents its sanctuary to the public as a means of raising revenue.

A gay couple contacts the pastor requesting use of the sanctuary for their wedding.

Does the fact that the church rents its sanctuary to the public make it a place of public accommodation and subject the church to liability if it rejects the gay couple?

After the 303 Creative decision, if a state or local public accommodations law is defined to include churches, or if such a law is construed by a court or administrative agency to include them, churches now can assert a constitutional defense to coverage based on the First Amendment’s free exercise or nonestablishment of religion and free speech clauses.

Dig Deeper:Public Accommodations Laws”—part of Church Law & Tax’s series on “15 Things Richard Hammar Wants Pastors to Know,” looks more closely at the application of public accommodations laws to churches and clergy.

Prior to any actions taken by a court or administrative agency, though, church leaders should review the following seven questions, preferably in consultation with qualified legal counsel. Doing so will help identify potential legal liabilities, and possible ways to minimize those liabilities:

Is there a public accommodations law in my city or state?

  • If so, what types of discrimination does it prohibit?
  • Does the law provide an exemption for churches?
  • If the law provides an exemption for churches, are there any conditions that must be satisfied?
  • If the law does not contain an explicit exemption for churches, what is the official position of the civil rights agency tasked with enforcement of the law? Does the agency take the position that churches are exempt? And if so, do any conditions apply? For example, does the exemption apply to churches that rent their properties to raise revenue?
  • If a state or local civil rights agency tasked with enforcement of a public accommodations law claims that it applies to churches that are engaged in commercial or other activities unrelated to exempt religious purposes, does church coverage only apply during the use of church property for the unrelated purpose, or more broadly to include all uses of church property?
  • Does the church’s constitutional rights of religion and speech take priority over a public accommodations law?

303 Creative LLC v. Elenis, 600 U.S. ___ (2023)

Matthew Branaugh, attorney and editor of Church Law & Tax, contributed to this report.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.

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