October 2, 2023
In its last term, the United States Supreme Court handed down several highly publicized, and highly scrutinized decisions. Arguably the most controversial decision of the term was the Court’s decision in 303 Creative, et al., v. Elenis, et al., 143 S.Ct. 2298.
In 303 Creative, the plaintiff, Lorie Smith (“Ms. Smith”), owned and operated a website that provided consulting and services related to website design, graphic design, marketing, and social media. (Id. at 2308.) As she organized her new business, Ms. Smith sought an injunction against the State of Colorado preventing the enforcement of the Colorado Anti-Discrimination Act (or “CADA”) in such a way that she would have to create wedding websites celebrating marriages that “defy her beliefs.” (Ibid.) As it turned out, Ms. Smith’s concerns about the potential overreach of Colorado into her protected speech and religious practice was well founded.
On appeal to the Supreme Court, Justice Gorsuch noted the main question presented by 303 Creative was: “Can a State force someone who provides her own expressive services to abandon her conscience and speak [the State’s] preferred message instead?” (Id. at 2318 (alterations added).)
The 303 Creative Decision: The Government Cannot Force Someone to Abandon Their Conscience to Speak the Government’s Preferred Message
In 303 Creative, the Supreme Court held that the First Amendment’s guaranty of free speech, keeps the government from compelling speech even if the government considers that speech “‘unattractive’[] … ‘misguided, or even hurtful . . . .’ (Id. 2321–22.) The decision was handed down 6–3, with Justice Sonya Sotomayor writing the dissent in which Justices Kagan and Brown Jackson joined.
Central to the decision, was a discussion of how CADA defined “public accommodations” and how Colorado attempted to use this broad definition to allow the State to compel speech and interfere in spheres protected by the First Amendment’s Free Exercise and Free Speech Clauses. Under CADA, public accommodations were “defined broadly to include almost every public-facing business in the State. (303 Creative, 143 S.Ct. at 2308.) In its analysis, the Court noted, “public accommodations statutes can sweep too broadly when deployed to compel speech.” (Id. at 2315.) Further, Justice Gorsuch, writing the majority opinion noted, that the Court has long held states cannot define public accommodations in manners that “coopt an individual’s voice for its own purposes.” (Ibid.)
At the crux of this debate is the tension created between the Constitution’s protections under the Free Exercise and Free Speech Clauses and the evolving and expanding nature of states public accommodations laws. Similar to what many states have done over the last twenty-five years, Colorado expanded its definition of public accommodations to include more types of businesses (including Ms. Smith’s), and to prohibit more forms of discrimination (such as discrimination based on sexual orientation). (See id. at 2314–16 [discussing the role of public accommodations laws protecting civil rights historically].) While these more expansive types of public accommodation protections are “unexceptional… [N]o public accommodations law[s are] immune from the demands of the Constitution.” (Id. at 2315.)
Whether a state’s public accommodations laws seek to be more protective and more expansive, 303 Creative stands for the proposition that such laws cannot go so far as compelling an individual or organization to speak and think in a manner that the government thinks is best. “And, once more, what was true in those cases must hold true here. When a state public accommodations law and the Constitution collide, there can be no question which must prevail.” (Ibid. [citing the Supremacy Clause].)
Suppose you are a church or Christian organization that periodically rents out your church facility for the purpose of raising revenue? If you do, what does this mean under your state’s own anti-discrimination or public accommodation laws? Would your state attempt to force you to open the use of your property or building to all groups, no matter their beliefs or values because your church or organization is a place of public accommodation?
While the answers to these questions will vary depending on the laws of your state, what is clear after the 303 Creative decision, is that states who attempt to use public accommodations laws and definition to coopt the speech of its citizens can now be subject to challenges under the First Amendment’s Free Speech and Free Exercise Clauses. The fact that public accommodations laws are more expansive today than they were fifty-years ago does not give states license to violate the First Amendment. To the extent you may be concerned about your state’s own public accommodations laws and the ways they may impact your church or organization, you should seek the advice of licensed counsel in your state.
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