Colorado designer does not have to make websites for same-sex couples, Supreme Court rules

Colorado cannot compel a website designer to create custom sites for same-sex couples, the U.S. Supreme Court ruled in an opinion released Friday.

The 6-3 ruling, written by Justice Neil Gorsuch, came in 303 Creative v. Elenis. Plaintiff Lorie Smith argued the Colorado Anti-Discrimination Act, which prohibits discrimination based on sexual orientation, violates her constitutional right to free speech.  She believes, based on her religion, that marriage should be between one man and one woman, and therefore she does not want to create wedding websites that feature her own original content for same-sex couples.

Aubrey Elenis, who is named as a defendant, is the director of the Colorado Civil Rights Division.

“The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees,” the court said.

Colorado Attorney General Phil Weiser, during a Friday news conference at the Ralph L. Carr Colorado Judicial Center in Denver, cast the ruling as an extreme shift that will allow all sorts of businesses to discriminate against many different communities.

“Today’s decision in 303 Creative permits businesses to turn away customers because of who they are,” Weiser said. “Based on the claimed ‘expressive’ interest, this radical opinion is far out of step of the will of the American people and our values as Americans. It is a significant departure from decades of established cases that all uphold the principle that our nation is committed to equal justice for all.”

Smith argued that creating the kind of websites she envisions is a form of speech, while the defendants argued it’s a service, and therefore “public accommodation” laws apply. Smith’s team said during oral arguments in December that the anti-discrimination law constitutes compelled speech in Smith’s case, meaning she would be forced to convey messages against her personal beliefs.

The court’s opinion says that while many states’ public accommodations laws have extended to cover most forms of business operations, “no public accommodations law is immune from the demands of the Constitution,” and therefore cannot compel speech.

“In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance,” the court said. “As this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong.

Gorsuch was joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh and Amy Coney Barrett in the majority opinion. Justice Sonia Sotomayor wrote a dissenting opinion, joined by Justices Elena Kagan and Ketanji Brown Jackson.

“The law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment,” Sotomayor wrote in her dissent. “Our Constitution contains no right to refuse service to a disfavored group.”

This is the second case from Colorado related to LGBTQ discrimination that made its way to the Supreme Court. The first was Masterpiece Cakeshop v. Colorado Civil Rights Commission, which involved a cake shop owner who denied a same-sex couple a wedding cake based on religious beliefs. The Masterpiece case focused on the First Amendment’s freedom of religion clause, while the 303 Creative case focused on the free speech clause.

Sweeping effects

In his remarks Friday, Weiser emphasized the potential broad implications of the ruling. He said the court’s decision “means a business could refuse to serve an interracial couple claiming that interracial marriage is wrong. It means a payroll company or photographer could say, ‘I don’t want to do business with women-owned businesses, because I don’t believe women should be working outside the home.’ It means a bookseller of religious texts could say, ‘I’m not going to sell books to a member of the Church of Jesus Christ of Latter-day Saints, because I don’t believe that it’s a legitimate religion,’ and so on.”

President Joe Biden in a statement echoed Weiser’s interpretation.

“While the Court’s decision only addresses expressive original designs, I’m deeply concerned that the decision could invite more discrimination against LGBTQI+ Americans,” Biden said in a statement. “More broadly, today’s decision weakens long-standing laws that protect all Americans against discrimination in public accommodations — including people of color, people with disabilities, people of faith, and women.”

Colorado Gov. Jared Polis, the country’s first openly gay man elected governor, noted that while the ruling did not invalidate the Colorado Anti-Discrimination Law, it opened a legal pathway for business owners who claim they’re selling “expressive” or “artistic” items to discriminate.

“Unfortunately, Americans have seen the Supreme Court become increasingly obsessed with taking away freedoms,” Polis said in a statement.

Weiser suggested a solution Friday.

“On the legal front, we’re going to do all we can to work to limit the impact of this decision and, ultimately, to overturn this decision,” Weiser said during the news conference, adding, referring to the Supreme Court’s reversal of the constitutional right to get an abortion, “Like the Dobbs decision of last year, this decision is not what our Constitution, what our democratic republic, stands for, which is founded on the promise of equal justice for all.”

The most important response to the ruling is for businesses to choose to serve everyone, he said.

This was a message that Nadine Bridges, executive director of One Colorado, which advocates for the LGBTQ community, voiced during the news conference.

“We call on all fair-minded businesses and owners to condemn discrimination and continue the long-standing commitment to treat everyone with dignity and respect and to remain open to all,” Bridges said.

This story was originally published in Colorado Newsline.