Supreme Court will now address the issue of whether anti-discrimination laws can be used to force business owners to publish messages which violate their beliefs.
The Supreme Court has agreed today to hear 303 Creative LLC v. Elenis. Lorie Smith runs 303 Creative. It is a Colorado-based graphic design agency. Smith wanted to create and host websites for weddings. However, she is against same-sex marriages and doesn’t want to have to. Smith is now in violation of Colorado’s Anti-Discrimination Act that prohibits discrimination towards LGBT customers.
Smith counters by saying that while she won’t deny LGBT customers her services, “she cannot create websites that promote messages contrary her faith,” as per her Supreme Court petition. The Tenth Circuit United States Court of Appeals has sided with the Colorado Civil Rights Division. It ruled that the law had been neutrally applied, and was not too broad or unconstitutionally vague. Colorado may legally require Smith that gay weddings be hosted on Colorado’s sites. She could also have to post a statement on her website saying she will not because of her religious beliefs.
The Supreme Court 7-2 ruling in this case is the genesis of the current case Masterpiece Cakeshop v. Colorado Civil Rights Commission. It even comes from the same country. Masterpiece Cakeshop’s case was about forcing a baker to make a marriage cake for gay couples. While the Court granted the Bakery a victory, the Court actually opted to ignore the central freedom of speech question. Court found that commissioners did not impartially apply the law and made statements suggesting bias towards Jack Phillips, Masterpiece Cakeshop’s Christian owner.
Similar results were obtained in another case. Fulton v. PhiladelphiaIt dodged another question about whether Catholic adoption agencies could discriminate against gay couple. It ruled in favor of the adoption agency—not for religious freedom reasons, but because the law gave city officials discretion to grant exemptions, and therefore, it was not a neutrally applied law.
These two cases were won by the agency and bakery, but no precedent was set. Legally, it is unclear how the First Amendment protects the services of florists, bakers, photographers, etc. Also, whether laws governing public accommodations could make businesses provide services at ceremonies they have moral objections to. Justice Neil Gorsuch in Fulton noted that these cases “will keep coming until Court can muster the fortitude and provide an answer.”
Several businesses also raised legal issues. There is now a Supreme Court. 303 Creative LLC. V. ElenisWe may be able to finally achieve the precedent that people seek. Alliance Defending Freedom will represent Smith. They also represented Phillips in Phillips’ Masterpiece Cakeshop matter.
The Cato Institute was joined by Eugene Volokh of UCLA Law (of The Volokh Conspiracy), as well as Dale Carpenter from Southern Methodist University Dedman School of Law (also contributing to The Volokh Conspiracy). They submitted amicus curiae briefs supporting Smith. The Court should find Colorado’s antidiscrimination law to be in violation of Smith’s First Amendment rights. Here are the notes.
The Tenth Circuit recognized that Smith’s creations of websites for weddings is pure speech. It is not a speech compulsion to force her to build websites that she does not like. If the state is able to satisfy strict judicial scrutiny, then she cannot be forced into this manner.
It is a narrowly-tailored decision to declare that an unique, customized product cannot be replaced and therefore it is a requirement that the product must be available in the marketplace. This is done to eliminate free speech protection for expressive products providers. This makes it difficult for courts to reject applications of speech regulations. The government is trying to penalize unpopular ideas, not just to ensure consumers have access to the products.
As a matter Constitutional law, this cannot be true. Providers of commercial services may be subject to certain anti-discrimination requirements by the state, but their right to free speech must not be compromised.
Today’s Supreme Court orders a narrowing of questions to the issue “Whether an artist can be compelled to speak or keep silent by a public-accommodation statute violates the First Amendment Free Speech Clause”
You should not be expecting a wide-ranging ruling to fundamentally rethink antidiscrimination legislation. Justice Gorsuch and Chief Justice John Roberts, two years ago, ruled that the Civil Rights Act of 64’s anti-discrimination protections also included gays and trans persons. It is about how commercial speech can be limited to not compromise the business values.