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Quarter 3, 2023: 303 Creative LLC – Government Interference With Protected “Creative Expression”

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303 Creative LLC – Government Interference With Protected “Creative Expression”
By: Attorney Alyssa LaCourse


A place of public accommodation generally may not deny the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations based on a person’s protected class, such as race, color, religion, sex, national origin, age, or disability. However, anti-discrimination laws seeking to protect against discrimination in places of public accommodation must also be weighed against rights afforded under the U.S. Constitution. On June 30, 2023, the U.S. Supreme Court issued a ruling on 303 Creative LLC et al. v. Elenis et al, holding that the First Amendment prohibits Colorado from forcing a website designer to create expressive designs with which the designer disagreed.

303 Creative LLC is a graphic design business intending to provide custom wedding websites for couples. The owner of 303 Creative, Ms. Smith, was worried Colorado would use the Colorado Anti-Discrimination Act (“CADA”) to compel her to create wedding websites for same-sex couples. Under CADA, all public accommodations are prohibited from denying the full and equal enjoyment of services to any customer based on, among other protected  characteristics, sexual orientation. Ms. Smith filed a lawsuit in federal court seeking an injunction to prevent Colorado from forcing her to create websites for same-sex marriages. The district court and the Tenth Circuit ruled in favor of Colorado, and Ms. Smith appealed to the U.S. Supreme Court.

The Supreme Court has long held that the thinking for ourselves and expressing thoughts freely are among our most cherished liberties. The Court found that CADA would deny this opportunity and promise. The Court recognized public accommodations laws play a vital role in the civil rights of all Americans, and governments across the country have a compelling interest in eliminating discrimination in public accommodations. The opinion noted that states may “protect gay persons, just as [they] can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” However, no public accommodations law is immune from the U.S. Constitution.

The Supreme Court reasoned that Ms. Smith’s refusal to make wedding websites for same-sex couples did not amount to discrimination on the basis of sexual orientation. Ms. Smith only objected to endorsing certain messages but not to serving certain customers. Ms. Smith was willing to serve all customers other products, and she would deny any customer a product that defied her sincerely held beliefs. In effect, CADA would be compelling Ms. Smith to speak messages she did not want to speak and requiring Ms. Smith to speak in a way that aligns with Colorado’s views but defies Ms. Smith’s conscience.

The Supreme Court reversed the judgment of the lower courts and held that Colorado’s CADA would compel an individual to create speech he/she did not believe thereby violating the First Amendment of the U.S. Constitution. It is important to note that this ruling does not give a green light for businesses to systematically turn away certain individuals if based on a protected class, such as same- sex couples, and such a situation should be reviewed closely by legal counsel.

If you have questions about your business’s obligations under public accommodation laws, contact Attorneys Spencer Pittman at [email protected] or Alyssa LaCourse at [email protected].

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