On June 30, 2023, the Supreme Court published its opinion in 303 Creative, LLC, v. Elenis. Neil Gorsuch authored the decision on behalf of the 6-3 majority. The case involves a Colorado designer seeking to expand her design business into wedding websites but, due to her religious beliefs, does not wish to design wedding websites for same-sex couples. Additionally, the designer wished to publish a statement saying as much on her website.
Prior to entering the marketplace, the designer sought an injunction (a court order) against the State of Colorado asserting that the State must not file a claim against the designer. The designer hoped to bar Colorado from later employing Colorado anti-discrimination and public accommodation statutes against her intent to later (1) publish a notice on her website declaring her intent to offer wedding website design services to opposite-sex couples only and (2) actually refuse the business of same-sex couples who might seek her wedding website design services.
Ruling in favor of the designer, the majority explains that while the First Amendment does not protect status-based discrimination, complying with Colorado’s statutes effectively compels the designer to create wedding websites for same-sex couples. This form of government-compelled speech is a violation of the designer’s First Amendment rights.
Initial takeaways:
Both parties stipulated that 303 Creative’s (future) product, wedding websites, were expressive in nature and highly customed.
Because of the parties’ stipulations, the Court did not conduct an analysis and offer insight into what kind of conduct it would consider highly expressive and customized. For this reason, without parties stipulating to conduct as highly expressive and customized, we cannot be sure what services will be offered the same protection(s) in the future.
The analysis is about freedom of speech and does not require any religious grounding or a “sincere religious belief.”
The opinion does not invalidate Colorado’s (or other State’s) anti-discrimination or public accommodation statutes as unconstitutional. Instead, the decision acts as a tunnel for the designer’s free speech rights in the related statutes.
Free Speech appears to be an absolute right, or at least above other rights.
The majority conducts no scrutiny analysis, departing from the 10th Circuit Court of Appeals which ruled against 303 Creative’s requested injunction, holding Colorado’s anti-discrimination and public accommodation statutes satisfied strict scrutiny. This opens the door to this kind of speech right as absolute and above anti-discrimination and public accommodation statutes.
Narrow or broad? Time will tell.
Ready narrowly, the opinion relates to highly customizable and expressive conduct, which likely excludes many products and services.
Read broadly, the opinion invites claims from all who can suggest their conduct is both sufficiently customized and expressive, which many businesses can suggest is the case.
The District Courts will play a significant role.
The Court offers no limiting principles to what conduct it might consider sufficiently customizable or expressive. The parties ' conduct may be protected whenever the former is found and a party wishes to avoid compliance with a law.
The Court offers no limiting principles to what laws might be subordinate to this kind of free speech. In this case, the Court holds free speech above anti-discrimination and public accommodations statutes but leaves the door open for the same analysis being conducted against other laws.
For these reasons, the lower District Courts will play a significant role in sorting through whatever wave(s) of cases and facts follow.
The parties and facts in 303 Creative encompass complex legal issues such as legal standing required to bring claims for harms yet to occur, anti-discrimination and public accommodation statutes, compelled-speech doctrine, free-speech doctrine, content and viewpoint-based restrictions on speech and scrutiny analysis, conduct as speech doctrine, and the commercial-speech doctrine. If you need help navigating business matters related to these complex issues, the attorneys at Erickson Sederstrom can help you with this process.