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303 Creative LLC v. Elenis is a Supreme Court case concerning the complicated relationship between anti-discrimination laws and the Free Speech Clause of the First Amendment. The petitioner, Lorie Smith, is a graphic designer from Colorado who intends to expand her website-designing services to include wedding websites. The issue arises in that Lorie believes same-sex marriage to be strictly against her religion and she therefore wishes to publish a statement on her business website explaining that she will refuse to design wedding websites for LGBTQ+ couples on the basis of her religion. However, in Smith’s state of Colorado, a public accommodations law entitled the Colorado Anti-Discrimination Act (CADA) prevents businesses from refusing services to customers on the basis of their sexual orientation, and also prevents businesses from publicly announcing their intentions to do so. Believing CADA to be infringing on her right to freedom of speech, Smith challenged the law in district court in 2016. Since then, the case has made its way to the Supreme Court. The case aims to answer the following question: Does applying a public accommodations law compelling an artist to speak or stay silent violate the free speech or free exercise clauses of the First Amendment?

Timeline of the Case

Smith’s case against the Colorado Anti-Discrimination Act went through various stages before the United States Supreme Court granted it certiorari. Below is a brief timeline of the progression of the case.

In 2016, Smith attempted to block enforcement of CADA and sued Colorado in the US District Court for the District of Colorado where the Court eventually decided to rule against Smith in 2019. Smith chose to appeal this decision in the US Court of Appeals for the Tenth Circuit, which proceeded to uphold the district court verdict in 2021. In response to this, Smith petitioned for a writ of certiorari from the Supreme Court which requires four Justices to agree to hear the case in order to be granted. Certiorari was granted for 303 Creative LLC. v. Elenis in February of 2022, and SCOTUS heard oral arguments for the case in December of 2022 but the verdict remains undecided thus far.

The Colorado Anti-Discrimination Act

In order to analyze this case, it is important to first understand the legal underpinnings of the Colorado Anti-Discrimination Act. The law is intended to guarantee equal access to public accommodations, defined as “any business that is engaged in any sales or offers services, facilities, privileges, advantages, or accommodations to the public”. It is therefore illegal in Colorado for places of public accommodation to discriminate against individuals based on disability, race, color, sexual orientation, marital or family status, religion, national origin, or ancestry. It is also important to note that CADA extends the definition of discrimination to include the publishing of messages indicating that a service will be refused to individuals of a particular group. 

In the context of 303 Creative v. Elenis, Smith’s services as a graphic designer are considered a business that offers a service. Therefore, her desire to publish a statement on her website explaining that she will refuse to design wedding websites for same-sex couples violates CADA. However, Smith argues that speech is a critical component of her business, calling the constitutionality of CADA into question. Smith states that in compelling her to provide services for same-sex couples, CADA is also compelling her to create speech that goes against her religious beliefs, violating the Free Speech clause of the First Amendment. 

In opposition to Smith, the state of Colorado argues that CADA is constitutional because it does not regulate Smith’s speech but instead strictly regulates her business, which falls under public accommodation. The state contends that CADA does not infringe on Smith’s freedom to define 303 Creative’s services as specifically as she would like, but once she decides on the products and services her business offers, CADA requires that she offer them to all customers regardless of their characteristics.

Analysis of the SCOTUS Oral Arguments 

Six years after Smith first sued the state of Colorado and CADA, the oral arguments for the case were presented to the Supreme Court. The following texts contain a summary and analysis of both arguments presented. . 

As mentioned above, Smith’s argument is focused primarily on the notion of free speech. To back this, Smith pointed to the 1995 Supreme Court case Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston. In this case, the court ruled that organizers of a Boston parade were able to exclude an LGBTQ+ group from participating on the basis of free speech, despite state anti-discrimination laws preventing discrimination on the basis of sexual orientation. The court’s ruling was based on the understanding that a group has the right to determine the messages its activities relay to the public, and Smith argues that this applies to her case. She also emphasizes that she regards her website-designing services as art, and states that CADA should not be allowed to force her artistic expression in a manner that contradicts her religious beliefs. 

In response, the state’s argument focuses primarily on emphasizing that CADA regulates commercial conduct, not speech or expression. CADA does not force Smith to transmit certain messages, but instead simply aims to prevent discrimination by requiring businesses to offer their services to all groups of individuals. There is nothing written in the law that curtails her free speech. Additionally, in retaliation to Smith’s use of the Hurley decision, the state counters that Hurley dealt with a private organization’s decision regarding what messages they wanted to portray through their parade. In contrast, Smith’s case deals with business practices and the selling of services, which is fundamentally different from Hurley. 

Overall, the Supreme Court Justices appeared split in their support of arguments presented. Conservative Supreme Court Justices appeared to support Smith’s side of the argument. Justice Thomas and Justice Barrett both strongly acknowledged how the artistic elements of Smith’s services should set them apart from other traditional services, such as restaurants, when it comes to public accommodations laws. They responded in agreement with the petitioner’s statement that CADA forces Smith to express messages that contradict her religious beliefs. On the other hand, the Liberal Justices disagreed. Justice Kagan relayed her understanding that wedding websites are not works of art that transmit the messages of the creator. She then went on to argue that even if the websites were considered to be art, they transmit the message of patrons, not of the creator who offered their services. Justice Jackson and Justice Sotomayor also spent a substantial amount of time posing hypothetical situations demonstrating the consequences a ruling in favor of Smith would have on US society. They argued that all other anti-discrimination laws would be in jeopardy, and the allowance for discrimination against groups of individuals would skyrocket. 

Possible Outcomes and Consequences

Many are closely watching this case, as the consequences of its verdict will be significant. It is often considered to be the ‘sequel’ to the previous 2018 Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission, which also involved disputes over CADA. In this case, the Court ruled in favor of a baker who refused to make a cake for a same-sex couple. However, this ruling was based on the free-exercise clause of the First Amendment, holding that the commissioners demonstrated anti-religious sentiments against the baker. The verdict of Masterpiece does not apply to 303 Creative v. Elenis, since Smith’s case revolves around free speech rather than free exercise. However, many are using the Court’s ruling in Masterpiece to predict a ruling in favor of Smith. 

A ruling in favor of Smith could put anti-discrimination laws all over the country in jeopardy. The verdict could allow refusal of services based on interracial relationships, physical disability, and other characteristics. It could also cause other businesses to pose as ‘artists’ in order to bypass anti-discrimination laws, allowing them to openly discriminate against groups of individuals without consequences.