303 Creative LLC et al. v. Elenis et al.

Table of Contents

Consequences

• 2023-07-25: Summary as of 25th July, 2023.
• 2023-07-14: 2nd Circuit, Alliance Defending Freedom files brief supporting photographer discrimnation.
• 2023-07-13: 6th Circuit, Alliance Defending Freedom files brief supporting photographer discrimnation.
• 2023-07-13: 7th Circuit decides in favor employment discrimination.
• 2023-07-12: Texas Justice of the Peace Dianne Hensley filed a lawsuit after a state agency warned her about refusing to marry gay couples. (article)
• 2023-07-07: Becket Fund for Religious Liberty cites 303 Creative for employment discrimination.
• 2023-06-30: Supreme Court vacates and remands decision by Court of Appeals of Oregon regarding refusal to sell a birthday cake to same-sex couple.

Articles

• Lorie Smith of 303 Creative made a wedding website in 2015.
• 303 Creative compared to Barnette 2023-07-05 by Caroline Mala Corbin
• The Dangerous 303 Creative Case 2022-06-15
• Unanswered Questions in the Web Designer Case 2023-06-30 by Michael Dorf
• A Conservative view of the opinion by Dale Carpenter
• Carpenter's and Volokh's Amici Curiae brief

Notable Items:

• Stipulations predetermined outcome (See beginning of Majority Part IV). "The parties have stipulated that Ms. Smith seeks to engage in expressive activity. And the Tenth Circuit has recognized her services involve “pure speech.” Nothing the dissent says can alter this-—nor can it displace the First Amendment protections that follow." See stipulations [emphasis added]
• When a state public accommodations law and the Constitution collide, there can be no question which must prevail. U. S. Const., Art. VI, cl. 2. [emphasis added]
• Gorsuch opinion: A ruling for the state would create an untenable choice for Smith. "If she wishes to speak, she must either speak [public business] as the State demands or face sanctions for expresssing her own beliefs [by refusing to serve a protected class], sanctions that may include compulsory participation in remedial training, filing periodic compliance reports ... and paying monetary fines."
• "Under Colorado's logic, ... the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic--no matter the underlying message--if the topic somehow implicates a customer's statutorily protected trait. ... Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty."
• Gorsuch cites: Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (20); Boy Scouts of America v. Dale (18); West Virginia Bd. of Ed. v. Barnette (7); Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n (5)
• Sotomayor dissent: "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."
• Sotomayor dissent: A website designer could equally refuse to create a wedding website for an interracial couple, for example. How quickly we forget that opposition to interracial marriage was often because “‘Almighty God . . . did not intend for the races to mix.’ ” Loving v. Virginia (1967).
• Sotomayor dissent: FAIR confirmed, however, that a neutral regulation of conduct imposes an incidental burden on speech when the regulation grants a right of equal access that requires the regulated party to provide speech only if, and to the extent, it provides such speech for others.
• Sotomayor cites: United States v. O’Brien (24); Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (21); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (10); Roberts v. United States Jaycees (9);

Issue(s) Before the Court:

Petitioner's Claim(s):

Respondent's Claim(s):

Holding(s) and Disposition:

Material Facts:

• [Parties agreed to stipulations that predetermined the outcome.]
• A full recounting of the facts is available below

Procedural History:

• [Tenth Circuit rejected Smith's freedom of religion claim per Koppelman's report]
• For its part, the Tenth Circuit held that Ms. Smith had standing to sue. In that court’s judgment, she had established a credible threat that, if she follows through on her plans to offer wedding website services, ....
• The court [Tenth Circuit] acknowledged that Ms. Smith’s planned wedding websites qualify as “pure speech” protected by the First Amendment.
• As a result, the court reasoned, Colorado had to satisfy “strict scrutiny” before compelling speech from her that she did not wish to create.
• Under that standard, the court continued, the State had to show both that forcing Ms. Smith to create speech would serve a compelling governmental interest and that no less restrictive alternative exists to secure that interest.
• As the majority saw it, Colorado has a compelling interest in ensuring “equal access to publicly available goods and services,” and no option short of coercing speech from Ms. Smith can satisfy that interest because she plans to offer “unique services” that are, “by definition, unavailable elsewhere.”
• We granted certiorari to review the Tenth Circuit’s disposition.

Rationale

Gorsuch Majority Opinion (Roberts, Thomas, Alito, Kavanaugh, Barrett)

• (a) The framers designed the Free Speech Clause of the First Amendment to protect the “freedom to think as you will and to speak as you think.”
• These cases illustrate that 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,” Hurley, 515 U. S., at 574, and likely to cause “anguish” or “incalculable grief,” Snyder v. Phelps, 562 U. S. 443, 456. Pp. 6–9.
• (b) ... wedding websites Ms. Smith seeks to create qualify as pure speech protected by the First Amendment under this Court’s precedents.
• Ms. Smith seeks to engage in protected First Amendment speech; Colorado seeks to compel speech she does not wish to provide.
• ... no public accommodations law is immune from the demands of the Constitution. Pp. 9–15.
• (c) Colorado’s theory rests on a belief that this case does not implicate pure speech, but rather the sale of an ordinary commercial product, and that any burden on Ms. Smith’s speech is purely “incidental.”
• ... speakers do not shed their First Amendment protections by employing the corporate form to disseminate their speech. p. 15–19, 24–25.
• "The parties have stipulated that Ms. Smith seeks to engage in expressive activity.
• And the Tenth Circuit has recognized her services involve “pure speech.” [Decision at odds with O'Brien, Rumsfeld v. Forum for Academic and Institutional Rights, Inc.,
• Nothing the dissent says can alter this-—nor can it displace the First Amendment protections that follow." See stipulations
• When a state public accommodations law and the Constitution collide, there can be no question which must prevail. U. S. Const., Art. VI, cl. 2. [emphasis added]
• A full description of the rationale is available below

Sotomayor Dissent (Kagan, Jackson)

1. All the company has to do is offer its services without regard to customers’ protected characteristics.
2. Any effect on the company’s speech is therefore “incidental” to the State’s content-neutral regulation of conduct. FAIR, 547 U. S., at 62; see Hurley, 515
3. Even if Smith believes God is calling her to do so [advocate the idea that same-sex marriage betrays God’s laws] through her for-profit company, the company need not hold out its goods or services to the public at large. Many filmmakers, visual artists, and writers never do. (That is why the law does not require Steven Spielberg or Banksy to make films or art for anyone who asks. But cf. ante, at 12, 23–24.)
4. Finally, and most importantly, even if the company offers its goods or services to the public, it remains free under state law to decide what messages to include or not to include.
5. All the company may not do is offer wedding websites to the public yet refuse those same websites to gay and lesbian couples.
6. Indeed, petitioners here concede that if a same-sex couple came across an opposite-sex wedding website created by the company and requested an identical website, with only the names and date of the wedding changed, petitioners would refuse. Id., at 37–38.11
7. That is status-based discrimination, plain and simple.

• Five years ago, this Court recognized the “general rule” that religious and philosophical objections to gay marriage “do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, (2018)
• 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 business [303 Creative] argues, and a majority of the Court agrees, that because the business offers services that are customized and expressive, the Free Speech Clause of the First Amendment shields the business from a generally applicable law that prohibits discrimination in the sale of publicly available goods and services. [reference to Employment Division v. Smith (1990)
• As I will explain, the law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment.
• Our Constitution contains no right to refuse service to a disfavored group
• Part I A [Public Accomodations]
• A “public accommodations law” is a law that guarantees to every person the full and equal enjoyment of places of public accommodation without unjust discrimination.
• The American people, through their elected representatives, have enacted such laws at all levels of government: The federal Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990 prohibit discrimination by places of public accommodation on the basis of race, color, religion, national origin, or disability. [sexual orientation not included]
• All but five States have analogous laws that prohibit discrimination on the basis of these and other traits, such as age, sex, sexual orientation, and gender identity. [state laws only]
• Preventing the “unique evils” caused by “acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages” is a compelling state interest “of the highest order.” Roberts, 468 U. S., at 624, 628; see Board of Directors of Rotary Int’l v. Rotary Club of Duarte, 481 U. S. 537, 549 (1987).
• Moreover, a law that prohibits only such acts by businesses open to the public is narrowly tailored to achieve that compelling interest. [strict scrutiny]
• The concept of a public accommodation thus embodies a simple, but powerful, social contract: A business that chooses to sell to the public assumes a duty to serve the public without unjust discrimination. J. Singer, No Right To Exclude: Public Accommodations and Private Property, 90 Nw. U. L. Rev. 1283, 1298 (1996) (Singer).
• Part I B 1 (page 7) [Deeply Rooted Law, ante-bellum]
• Part I B 2 (page 9) [Anti-discrimination law, since the Civil War] [15th: race, color, previous condition of involuntary servitude. Civil Rights Act Title II: race, color, religion, or national origin.]
• Part I B 3 [LGBT rights movement]
• Part I C [Rejection of Exceptions]
• Yet for as long as public accommodations laws have been around, businesses have sought exemptions from them.
• This Court was unwavering in its rejection of those claims, as invidious discrimination “has never been accorded affirmative constitutional protections.” Norwood v. Harrison, 413 U. S. 455, 470 (1973).
• Part I C 1 [Court's Rejection of Claims to Discrimination Based on Race]
• Opponents of the Civil Rights Act of 1964 objected that the law would force business owners to defy their beliefs.
• They argued that the [Civil Rights] Act would deny them “any freedom to speak or to act on the basis of their religious convictions or their deep-rooted preferences for associating or not associating with certain classifications of people.”
• In Heart of Atlanta Motel, one of several arguments made by the plaintiff motel owner was that Title II violated his Fifth Amendment due process rights by “tak[ing] away the personal liberty of an individual to run his business as he sees fit with respect to the selection and service of his customers.” [emphasis added]
• In Katzenbach v. McClung, 379 U. S. 294 (1964), the owner of Ollie’s Barbecue (Ollie McClung) likewise argued that Title II’s application to his business violated the “personal rights of persons in their personal convictions” to deny services to Black people. [emphasis added]
• Next is Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400 (1968) (per curiam), in which the owner of a chain of drive-in establishments asserted that requiring him to “contribut[e]” to racial integration in any way violated the First Amendment by interfering with his religious liberty. Title II could not be applied to his business, he argued, because that would “ ‘controven[e] the will of God.’ ” 390 U. S., at 402–403, n. 5. The Court found this argument “patently frivolous.” [emphasis added]
• In Runyon [v. McCrary (1976)], the Court confronted the question whether “commercially operated” schools had a First Amendment right to exclude Black children, notwithstanding a federal law against racial discrimination in contracting. They argued that the law, as applied to them, violated their First Amendment rights of “freedom of speech, and association.” The Court, however, reasoned that the schools’ “practice” of denying educational services to racial minorities was not shielded by the First Amendment, for two reasons: First, “the Constitution places no value on discrimination.” Second, the government’s regulation of conduct did not “inhibit” the schools’ ability to teach its preferred “ideas or dogma.”
• Part 1 C 2 [Court's Rejection of Claims to Discrimination Based on Gender]
• In Roberts v. United States Jaycees, the United States Jaycees sought an exemption from a Minnesota law that forbids discrimination on the basis of sex in public accommodations. The or- ganization alleged that applying the law to require it to include women would violate its “members’ constitutional rights of free speech and association.” [emphasis added]
• A shopkeeper,” Justice O’Connor explained, “has no constitutional right to deal only with persons of one sex.”
• Part II
• Time and again, businesses and other commercial entities have claimed constitutional rights to discriminate. And time and again, this Court has courageously stood up to those claims—-until today.
• The Court’s decision, which conflates denial of service and protected expression, is a grave error.
• Part II A [Material Facts]
• ... Smith would like her company to sell wedding websites “to the public,” App. to Pet. for Cert. 189a; Colo. Rev. Stat. §24–34–601(1), but not to same-sex couples.
• In other words, the company claims a categorical exemption from a public accommodations law simply because the company sells expressive services
• Part II B 1 [Regulation of Conduct and Incidental Speech]
• Consider United States v. O’Brien, 391 U. S. 367 (1968). In that case, the Court upheld the application of a law against the destruction of draft cards to a defendant who had burned his draft card to protest the Vietnam War.
• The O’Brien standard is satisfied if a regulation is unrelated to the suppression of expression and “ ‘promotes a substantial government interest that would be achieved less effectively absent the regulation.’ ” FAIR, 547 U. S., at 67 (quoting United States v. Albertini, 472 U. S. 675, 689 (1985)).
• But that [schools provided recruiting assistance in the form of emails, notices on bulletin boards, and flyers] did not transform the equal provision of services into “compelled speech” of the kind barred by the First Amendment, because the school’s speech was “only ‘compelled’ if, and to the extent, the school provides such speech for other recruiters.” FAIR
• Thus, any speech compulsion was “plainly incidental to the Solomon Amendment’s regulation of conduct.” Ibid.
• Part II B 2 (page 26) [Resolution of the Instant Case]
• The same principle resolves this case.
• This Court, however, has already said that “a ban on race-based hiring may require employers to remove ‘White Applicants Only’ signs.” Sorrell, 564 U. S., at 567
• ... petitioners concede that they are not entitled to an exemption from the Communication Clause unless they are also entitled to an exemption from the Accommodation Clause.
• That concession is all but fatal to their argument, because it shows that even “pure speech” may be burdened incident to a valid regulation of conduct. (The Court’s prior First Amendment cases clearly explain that a ban on discrimination may require a business to take down a sign that expresses the business owner’s intent to discriminate. his principle is deeply inconsistent with the majority’s po- sition. Thus, a “straight couples only” notice, like the one the Court today allows, see App. to Pet. for Cert. 188a–189a, is itself a devastating indictment of the majority’s logic.)
• It is well settled that a public accommodations law like the Accommodation Clause does not “target speech or discriminate on the basis of its content.” Hurley, 515 U. S., at 572.
• All the company has to do is offer its services without regard to customers’ protected characteristics.
• Any effect on the company’s speech is therefore “incidental” to the State’s content-neutral regulation of conduct. FAIR, 547 U. S., at 62; see Hurley, 515 U. S., at 572–573.
• Even if Smith believes God is calling her to do so [advocate the idea that same-sex marriage betrays God’s laws] through her for-profit company, the company need not hold out its goods or services to the public at large. Many filmmakers, visual artists, and writers never do. (That is why the law does not require Steven Spielberg or Banksy to make films or art for anyone who asks. But cf. ante, at 12, 23–24.)
• Finally, and most importantly, even if the company offers its goods or services to the public, it remains free under state law to decide what messages to include or not to include.
• All the company may not do is offer wedding websites to the public yet refuse those same websites to gay and lesbian couples.
• Part II B 3 (page 29) [Application of O'Brien]
• Because any burden on petitioners’ speech is incidental to CADA’s neutral regulation of commercial conduct, the regulation is subject to the standard set forth in O’Brien.
• That standard is easily satisfied here because the law’s application “promotes a substantial government interest that would be achieved less effectively absent the regulation.”
• Part II C [Critique of the Majority Opinion]
• The Court reaches the wrong answer in this case because it asks the wrong questions.
• Instead, the proper focus is on the character of state action and its relationship to expression.
• O’Brien burned his draft card to send a political message, and the burden on his expression was substantial. Still, the burden was “incidental” because it was ancillary to a regulation that did not aim at expression.
• Indeed, petitioners here concede that if a same-sex couple came across an opposite-sex wedding website created by the company and requested an identical website, with only the names and date of the wedding changed, petitioners would refuse. Id., at 37–38.11
• That is status-based discrimination, plain and simple.
• Oblivious to this fact, the majority insists that petitioners discriminate based on message, not status.
• To allow a business open to the public to define the expressive quality of its goods or services to exclude a protected group would nullify public accommodations laws.
• It would mean that a large retail store could sell “passport photos for white people.”
• FAIR confirmed, however, that a neutral regulation of conduct imposes an incidental burden on speech when the regulation grants a right of equal access that requires the regulated party to provide speech only if, and to the extent, it provides such speech for others.
• Requiring Smith’s company to abide by a law against invidious discrimination in commercial sales to the public does not conscript her into espousing the government’s message.
• Part III (page 35)
• The Supreme Court of the United States declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class.
• All members of the public are entitled to inhabit public spaces on equal terms.
• A website designer could equally refuse to create a wedding website for an interracial couple, for example. How quickly we forget that opposition to interracial marriage was often because “ ‘Almighty God ... did not intend for the races to mix.’ ” Loving v. Virginia, 388 U. S. 1, 3 (1967).

Full Recounting of Facts

• A list of the material facts is available above

Gorsuch Majority Full Argument (Roberts, Thomas, Alito, Kavanaugh, Barrett)

• Like many States, Colorado has a law forbidding businesses from engaging in discrimination when they sell goods and services to the public.
• Part I A [Background]
• Through her business, 303 Creative LLC, Lorie Smith offers website and graphic design, marketing advice, and social media management services.
• All of the text and graphics on these websites will be “original,” “customized,” and “tailored” creations.
• While Ms. Smith has laid the groundwork for her new venture, she has yet to carry out her plans. [standing ?]
• Part I B [Standing]
• To clarify her rights, Ms. Smith filed a lawsuit in federal district court. [advisory opinion ?]
• To secure relief, Ms. Smith first had to establish her standing to sue. That required her to show “a credible threat” existed that Colorado would, in fact, seek to compel speech from her that she did not wish to produce. Susan B. Anthony List v. Driehaus, 573 U. S. 149, 159 (2014).
• Colorado Anti-Discrimination Act (CADA)...defines a “public accommodation” broadly to include almost every public-facing business in the State.
• ... prohibits a public accommodation from denying “the full and equal enjoyment” of its goods and services to any customer based on his race, creed, disability, sexual orientation, or other statutorily enumerated trait.
• To facilitate the district court’s resolution of the merits of her case, Ms. Smith and the State stipulated to a number of facts: [emphasis added]
  • [First Amendment stipulations bolded. Civil Rights Act stipulations missing?]
  • Ms. Smith is “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender,” and she “will gladly create custom graphics and websites” for clients of any sexual orientation.
  • She will not produce content that “contradicts bibli- cal truth” regardless of who orders it.
  • Her belief that marriage is a union between one man and one woman is a sincerely held religious conviction.
  • All of the graphic and website design services Ms. Smith provides are “expressive.” [emphasis added]
  • The websites and graphics Ms. Smith designs are “original, customized” creations that “contribut[e] to the overall messages” her business conveys “through the websites” it creates. [emphasis added]
  • Just like the other services she provides, the wedding websites Ms. Smith plans to create “will be expressive in nature.” [emphasis added]
  • Those wedding websites will be “customized and tailored” through close collaboration with individual couples, and they will “express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage. [emphasis added]
  • Viewers of Ms. Smith’s websites “will know that the websites are [Ms. Smith’s and 303 Creative’s] original artwork.” [emphasis added]
  • To the extent Ms. Smith may not be able to provide certain services to a potential customer, “[t]here are numerous companies in the State of Colorado and across the nation that offer custom website design services.”
• Part I C [Procedural History]
• Part II [Selected and Preverted First Amendment Precedent]
• As these cases illustrate, 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,” Hurley, 515 U. S., at 574, and likely to cause “anguish” or “incalculable grief,” Snyder v. Phelps, 562 U. S. 443, 456 (2011).
• Equally, the First Amendment protects acts of expressive association. See, e.g., Dale, 530 U. S., at 647–656; Hurley, 515 U. S., at 568–570, 579.
• Generally, too, the government may not compel a person to speak its own preferred messages. See Tinker v. Des Moines Independent Community School District 393 U. S. 503, 505–506 (1969) ....
• Part III [Dismissal of Public Accomodations Statutes]
• The Tenth Circuit held that the wedding websites Ms. Smith seeks to create qualify as “pure speech” under this Court’s precedents. 6 F. 4th, at 1176. We agree.
• We further agree with the Tenth Circuit that the wedding websites Ms. Smith seeks to create involve her speech. 6 F. 4th, at 1181, and n. 5.
• As the parties have described it, Ms. Smith intends to “ve[t]” each prospective project to determine whether it is one she is willing to endorse. [emphasis added]
• Of course, Ms. Smith’s speech may combine with the couple’s in the final product. But for purposes of the First Amendment that changes nothing. An individual “does not forfeit constitutional protection simply by combining multifarious voices” in a single communication. Hurley, 515 U. S., at 569.
• Indeed, the Tenth Circuit recognized that the coercive “[e]liminati[on]” of dissenting “ideas” about marriage constitutes Colorado’s “very purpose” in seeking to apply its law to Ms. Smith. 6 F. 4th, at 1178. [when a public business seeks to refuse customers of a protected class]
• We part ways with the Tenth Circuit only when it comes to the legal conclusions that follow.
• If she wishes to speak [operate a public business], she must either speak [operate a public business] as the State demands or face sanctions ....
• Under our precedents, that “is enough,” more than enough, to represent an impermissible abridgment of the First Amendment’s right to speak freely. Hurley, 515 U. S., at 574.
• Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—-if the topic somehow implicates a customer’s statutorily protected trait. 6 F. 4th, at 1198
• Statutes like Colorado’s grow from nondiscrimination rules the common law sometimes imposed on common carriers and places of traditional public accommodation like hotels and restaurants. Dale, 530 U. S., at 656–657
• States may “protect gay persons, just as [they] can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment.”
• In Hurley, the veterans had an “enviable” outlet for speech; after all, their parade was a notable and singular event. 515 U. S., at 560, 577–578
• ... this Court held that the State could not use its public accommodations statute to deny speakers the right “to choose the content of [their] own message[s].” Hurley, 515 U. S., at 573; see Dale, 530 U. S., at 650–656.
• Part IV [Compelled Speech Claim]
• Before us, Colorado appears to distance itself from the Tenth Circuit’s reasoning.
• Now, the State seems to acknowledge that the First Amendment does forbid it from coercing Ms. Smith to create websites endorsing same-sex marriage or expressing any other message with which she disagrees. [emphasis added. result of stipulations?]
• To comply with Colorado law, the State says, all Ms. Smith must do is repurpose websites she will create to celebrate marriages she does endorse for marriages she does not.
• She sells a product to some, the State reasons, so she must sell the same product to all.
• Instead, Colorado says, this case involves only the sale of an ordinary commercial product and any burden on Ms. Smith’s speech is purely “incidental.”
• This alternative theory, however, is difficult to square with the parties’ stipulations.
• Does anyone think a speechwriter loses his First Amendment right to choose for whom he works if he accepts money in return? Or that a visual artist who accepts commissions from the public does the same? [Annie Liebovitz...by referral only? not a public business/accomodation?]
• Part V (page 19) [Regarding the Dissent]
• Can a State force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?
• The dissent claims that Colorado wishes to regulate Ms. Smith’s “conduct,” not her speech.
• The core of the rationale is available above