In 303 Creative LLC v. Elenis, 6 F.4th 1160 (10th Cir. 2021), the 10th U.S. Circuit Court of Appeals held that a Colorado anti-discrimination law did not violate the First Amendment free speech or religious free exercise rights of a web designer who wanted to refuse to make wedding websites for same-sex couples.
In a 2-1 decision, the 10th Circuit held that the law, the Colorado Anti-Discrimination Act, did not violate the First Amendment’s protection of free speech because the law was justified under the highest level of judicial review, strict scrutiny. The 10th Circuit also held that the anti-discrimination law did not violate the First Amendment’s protection of religious free exercise because it was a neutral law of general applicability.
In June 2023, the U.S. Supreme Court reversed the 10th Circuit on the free speech issue, holding that under the compelled speech doctrine, the designer’s owner, Lorie Smith, had a First Amendment free speech right to refuse to design wedding websites for same-sex couples.
Refusal to make same-sex wedding websites could violate Colorado law
303 Creative LLC is a website design company. Smith is its founder, owner and sole member. Smith wants to start offering wedding website services through 303 Creative. She has not yet done so on the grounds that her refusal to make such websites for same-sex couples might violate Colorado’s anti-discrimination law.
Specifically, Smith suggests that her actions might violate two provisions of the law. The first provision (the “Accommodation Clause”) prohibits public accommodations from refusing to provide full and equal enjoyment of services to individuals because of those individuals’ protected characteristics, including sexual orientation.
The second provision (the “Communication Clause”) prohibits public accommodations from publishing anything indicating that they will refuse full and equal service to individuals because of those individuals’ protected characteristics—including sexual orientation—or indicating that such individuals’ patronage is “unwelcome, objectionable, unacceptable, or undesirable.”
In addition to refusing to make wedding websites for same-sex couples, Smith wants to include a message on her website stating, in part, that “I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage.”
Both Smith and Colorado agree that 303 Creative satisfies Colorado’s definition of a public accommodation. Smith argues that Colorado may treat her refusal to provide same-sex wedding websites as violating the statute’s accommodation clause if she is providing other wedding websites. She also argues that Colorado may treat the statement she wants to include on her website as a violation of the Communication Clause.
On these grounds, Smith brought a pre-enforcement challenge against the law. A Colorado district court judge granted summary judgment in Colorado’s favor. Smith appealed to the 10th Circuit.
Federal court says Colorado anti-discrimination law is constitutional
The 10th Circuit concluded that Smith had standing to bring her pre-enforcement challenge because she had a credible fear of prosecution given that she intended to discriminate in a way that arguably violated Colorado law and because enjoining enforcement against her in these circumstances would redress that fear.
The 10th Circuit held that Smith’s creation of wedding websites was pure speech (as opposed to expressive conduct, for example) for purpose of First Amendment assessment. The court also held that the statute’s accommodation clause would compel Smith to speak through the creation of same-sex wedding websites. The court viewed such compelled speech as a form of content-based restriction because Smith was restricted in making wedding websites for heterosexual couples unless she was also willing to make them for same-sex couples.
Because the court determined that the accommodation clause imposed a content-based restriction on Smith’s speech, the court applied strict scrutiny. The court concluded that the accommodation clause satisfied strict scrutiny because the law promoted compelling government interests — “protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace”—and the law was narrowly tailored to meet the interest of ensuring equal access to the commercial marketplace because of the unique nature of Smith’s products and services.
The court also held that the communication clause did not violate Smith’s free speech rights because it merely prohibits speech promoting unlawful activity (i.e. unlawful discrimination).
To address Smith’s religious free exercise claim, the court relied on Employment Division v. Smith, where the Supreme Court held that the free exercise clause did not require the application of strict scrutiny when the law under question is neutral and generally applicable. The 10th Circuit concluded that Smith had not provided evidence that the anti-discrimination law was not neutral or generally applicable, nor had Smith provided evidence that it would not be applied neutrally in the case of her religious beliefs.
Dissent from chief judge says restrictions are viewpoint based
Chief Judge Timothy Tymkovich dissented. He argued that the anti-discrimination law would compel Smith’s speech and would impose both content-based and viewpoint-based restrictions on Smith’s speech. He thus agreed with the majority that strict scrutiny must be applied. But he disagreed that the law satisfied strict scrutiny.
Tymkovich agreed that eliminating discrimination in public accommodations was a compelling state interest. But he charged the majority with treating access to Smith’s services specifically as a compelling state interest and denied that this was so. He also argued that the law was not narrowly tailored because the law could have permitted message-based exceptions or exceptions for artists engaged in speech.
He also concluded that the law, as applied to Smith, violated the free exercise clause. He argued that the law had a system in place to grant individual exemptions, similar to the system the Supreme Court identified in Fulton v. Philadelphia. As a result, he concluded that it was not a neutral law of general applicability and was thus also subject to strict scrutiny on free exercise grounds.
This article was published in April 2023. Mark Satta is assistant professor of philosophy at Wayne State University.