303 Creative v. Elenis: The Battle Between Religious Freedom and LGBTQ Rights Continues

GABRIELLA PINZON—This term, the clash between freedom of speech and LGBTQ rights continues as the Supreme Court is slated to hear oral arguments in 303 Creative LLC v. Elenis. The following question is before the Court: Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.

Lorie Smith is the owner and founder of 303 Creative LLC, a graphic design firm that offers graphic and website design services to the public. Smith wishes to expand her portfolio to include wedding-related services. However, Smith refuses to design websites for same-sex weddings on the ground that it violates her religious beliefs. She claims that offering wedding-related services to non-heterosexual couples “would compromise [her] Christian witness and tell a story about marriage that contradicts God’s true story of marriage – the very story He is calling [her] to promote.”

Smith wants to post a message on her business page explaining her wedding service policy, but the Colorado Anti-Discrimination Act (“CADA”) prohibits businesses open to the public from discriminating on the basis of a protected characteristic, including sexual orientation. Further, CADA includes a Communications Clause that prohibits businesses from posting a notice that indicates that goods or services will be denied to an individual based on a protected characteristic. Smith brought this action to challenge CADA’s constitutionality.

Smith argues that the CADA violates her First Amendment right to free speech because the Act forces her to speak “contrary to her conscience by designing, creating, and publishing websites she would not otherwise create[.]” In response, Elenis argues that CADA does not compel any business’s speech in violation of the First Amendment because the Act does not require Smith’s company to offer particular services; instead, it ensures that the services Smith chooses to offer remain available to all customers regardless of their protected characteristics. Further, Elenis argues that selling a service to the public is not expressive conduct, rebutting Smith’s claim that providing the same wedding-related services to same-sex couples as she would for opposite-sex couples would communicate that Smith supports same-sex marriages.

This is not the first time the Court has grappled with religious freedom and LGBTQ rights. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court upheld a baker’s right to refuse to bake a wedding cake for a same-sex couple. But it did not do so on the ground that CADA violated the baker’s First Amendment right. Instead, the Court based its ruling on the Colorado Civil Rights Commission’s treatment of the baker’s case, holding it “was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.”

With 303 Creative v. Elenis, it seems the Court will finally tackle the issue of how public accommodation laws square with the First Amendment. How exactly the Court will rule on this issue remains a mystery, but with a six-justice conservative majority, and some arguing that the Supreme Court is the most conservative it has been in almost a century, it seems doubtful that the Court will uphold CADA. Indeed, Irv Gornstein, executive director of the Supreme Court Institute at Georgetown Law stated, “On the things that matter most, get ready for a lot of 6-3s.” Regardless of the Court’s decision, the scope of the First Amendment and the rights of LGBTQ Americans are sure to be affected.