In this analysis you will find a summary of the recent Federal Supreme Court Case, 303 Creative LLC v. Elenis, a detailed analysis of legal implications with examples, and recommended resources as of August 2023. This in-depth analysis is purely informational and does not take the place of professional legal advice. We encourage community members to seek legal counsel regarding any legal proceedings.
Lead Author, Dakota Ball
The Supreme Court decision in 303 Creative has made headlines for the harmful message it sends to LGBTQ+ Americans. But what does it actually mean? Is everyone now allowed to discriminate? What does this ruling mean for the Ohio Fairness Act and existing anti-discrimination laws and proposals?
303 Creative: What Now?
In the Supreme Court case of 303 Creative v. Elenis, a business woman named Lorie Smith brought a lawsuit against the State of Colorado because she did not want to create wedding websites for LGBTQ+ couples, despite Colorado’s legal protections against discrimination on the basis of sexual orientation and gender identity.
The Court ruled that, based on the stipulated facts of the case, this specific work product fell into the category of “expressive” business, and therefore discrimination based on sexual orientation and gender identity was allowable in this context because this “expressive” business fell under the umbrella of “speech” protected by the First Amendment.
Despite this ruling, anti-discrimination laws like Colorado’s remain valid, constitutional, and binding. The Court did not undermine the validity of Colorado’s anti-discrimination law, but rather ruled that this instance fell within a First Amendment exception.
PT 1: Summary of the Ruling
The Supreme Court ruled in favor of the plaintiff, Lorie Smith, owner of 303 Creative, LLC, holding that she is allowed to refuse to create wedding websites for LGBTQ+ couples.
SUMMARY OF FACTS
In 2008, Colorado codified nondiscrimination laws through the Colorado Anti-Discrimination Act (CADA) to protect the right to access public accommodations in the state of Colorado regardless of the individual’s “sexual orientation”, “gender identity”, or “marital status”.
In 2016, website designer and 303 Creative LLC owner Lorie Smith sued, arguing Colorado’s nondiscrimination law violated her First Amendment Right to Free Speech. Specifically, she did not want to create wedding websites for same-sex couples because doing so would compel her to “speak” in favor of something that went against her “sincerely held religious beliefs”.
The Supreme Court ruled in favor of Ms. Smith based on her “worries” that at some point, she would be asked to create a website through 303 Creative for a same-sex wedding and that, at her refusal, Colorado would intervene with fines, reeducation, or other sanctions until and unless she complied. Prior to this ruling, 303 Creative never made, nor had been asked to make, a wedding website for an LGBTQ+ couple. Though 303 Creative claimed early on in its case to have received a request from a man known as “Stewart” asking to work with Ms. Smith on various wedding pieces, it was later discovered (after the ruling was announced) that the request was not credibly made. While 303 Creative used this request in their initial explanations of why the case should be heard, their attorney insists the initial claims of the request were not fabricated by anyone involved in the suit.
While lower courts found that Ms. Smith’s refusal to create a wedding website for same-sex couples violates Colorado law, the Supreme Court ruled in favor of Ms. Smith, ruling that, under this specific set of facts, making the wedding website constitutes “speech” and is therefore exempted from the anti-discrimination law. The majority of the Court rests this exemption on the fact that the US Constitution overrides state anti-discrimination laws when the two are at odds. By carving out a “Free Speech” exemption to anti-discrimination law based on the facts stipulated to by the State of Colorado and Ms. Smith (rather than invalidating the law altogether), the Court majority created a narrow ruling in Ms. Smith’s favor.
The case was filed in 2016 and was decided by the Supreme Court in 2023. Over the course of those years, anti-LGBTQ+ sentiments across the country have increased and intensified, and incidents of overt discrimination are on the rise.
Pt 2: Analysis of Legal Impact
IS DESIGNING A WEDDING WEBSITE “BUSINESS CONDUCT” OR “EXPRESSIVE SPEECH”, AND WHY DOES IT MATTER?
The focus of the Court majority during this case became the nature of Ms. Smith’s creation of websites and whether designing them was her own expressive speech. The Court ruled that websites created by 303 Creative communicated messages through artistic expression and so were protected speech under the First Amendment. But some worry that “free speech” will now be used as a pretext for businesses to discriminate against LGBTQ+ people. Using the First Amendment as a loophole to get around laws meant to protect against discrimination is not new, and this Court allowed this to happen in this case.
Because “speech” doesn’t have to be literally spoken, “conduct” and “speech” can often become difficult to pull apart. In the most general of senses, conduct is what a person does, whereas speech is what a person communicates. Though generally understood to cover spoken words, speech can be extremely wide-ranging. Hand gestures and symbolic communication also can constitute protected speech, for example.
While the government cannot suppress speech or stop someone from communicating something in a protected way, the government also cannot compel speech. “Compelled speech” is when the government requires a person to express something they do not want to, with consequences if they don’t. Due to the First Amendment, government regulation of speech is only acceptable in very rare and specific circumstances where the government is trying to achieve something very important and has no other way to do so.
Though discrimination can often feature speech, laws regulating it generally focus on conduct. Discriminatory conduct, generally, is the active part of discrimination, such as turning someone away from a business based on who they are. The government may regulate conduct through laws creating consequences for actions, from small actions like littering to other more serious criminal offenses. Government may also regulate against discrimination–as Colorado did through its CADA law–because it has a compelling governmental interest in protecting the rights of individuals against such discrimination.
DIFFERENT ANALYSES, DIFFERENT CONCLUSIONS
The Majority and Minority focus their opinions in 303 Creative very differently. While the dissent focused on the right granted to LGBTQ+ couples to have equal access to services through CADA, the majority focused on whether Colorado’s nondiscrimination law was compelling Ms. Smith to speak in a way that she otherwise would not have.
Justice Neil Gorsuch made it clear that the majority saw Ms. Smith’s creation of a wedding website as an act of expressive speech, which is protected by the First Amendment. By taking this approach, the majority left Ms. Smith’s conduct out of the equation and focused instead on if the government was requiring her to speak about things with which she did not agree.
In her dissent, Justice Sonia Sotomayor focused on the refusal of Ms. Smith to create wedding websites for LGTBQ+ couples as the type of conduct specifically protected against in nondiscrimination laws. Colorado’s nondiscrimination law specifically mentions the “full and equal enjoyment” of the goods and services provided by a place of public accommodations regardless of a number of social factors.
Looking at this case from a conduct lens, Ms. Smith’s conduct is to keep only certain people from accessing the services provided by her business based solely on their LGBTQ+ identity. Looking at it from a speech lens, the government of Colorado was regulating Ms. Smith’s speech in order to further the government’s goal of disallowing discrimination. According to the Plaintiffs, due to the expressive nature of her created websites, Ms. Smith felt as if the government of Colorado was forcing her to speak by requiring her to express support for same-sex marriage in a way that went against her religious convictions. If the Court had evaluated Ms. Smith’s refusal to create websites for LGBTQ+ couples strictly as “conduct” under this law, her reasoning would be given little weight.
SINCERELY HELD RELIGIOUS BELIEF & DISPROPORTIONATE IMPACT
A concerning aspect of this decision is the willingness to accept discriminatory views as sincerely held religious beliefs beyond reproach. The 303 Creative decision focused on the fact that Ms. Smith wouldn’t make a website that expressed anything that went against her beliefs concerning the truth of the Bible. This included support of same-sex marriage. The fact that straight couples don’t inherently have to run the merits of their relationship by the website designer while making a request for her services seemed to make little difference to the Court.
The issue of discriminatory conduct was then erased, according to the Court, because Ms. Smith would not make websites that go against her religious beliefs for anyone, even if LGBTQ+ couples were disproportionately affected by this behavior. Considering that disparate impact is explicitly a category of illegal discrimination, this conclusion appears at odds with the historic understanding of legal discrimination.
THE STIPULATED FACTS ARE EVERYTHING IN THIS CASE
Stipulations played a major role in determining the outcome of this case. The majority’s opinion frequently cited the stipulated facts in its justification for ruling that the creation of a wedding website is speech rather than conduct.
|What are stipulations/stipulated facts?|
Stipulations are facts that both parties agree on in writing before a case is argued before the court. They are generally used to save time during a trial. Rather than litigate every fact, the parties can agree on facts that are not in dispute.
Stipulations play a large role in guiding the legal strategy for both sides, and they have the potential to create a more favorable starting point for one side’s legal argument. Stipulations can steer the court to focus on a detail that a lawyer wants to emphasize, or preempt or defang arguments that opponents are likely to make.
Judges and Justices use stipulations to inform their questions in the courtroom and ultimately, opinions of the case. Stipulated facts provide the starting point from which the Judges rule on the ultimate outcome.
The appeals process takes several years, and in this case, 303 Creative and Colorado agreed on the stipulated facts long ago before 2018. Much has changed since then. One can assume that there were strategic reasons for both 303 Creative and Colorado to stipulate certain facts in this case, but most of those stipulations, in retrospect and in the current legal environment, appear to strongly favor 303 Creative.
In summary, the relevant stipulations expressed that:
- Ms. Smith stipulated that she was willing to work with LGBTQ+ people in contexts other than that of weddings, as long as those websites did not go against her personal beliefs (regardless of whether the person was LGBTQ+ or not). These beliefs include that, from a religious standpoint, marriage is only between one man and one woman.
Why it matters: Colorado had much more difficulty arguing that Ms. Smith’s refusal to make a wedding website was a denial of service, practically speaking, on the basis of sexual orientation.
- The State of Colorado agreed that the websites Ms. Smith designs are expressive, original creations that promote Ms. Smith’s own views on marriage and are recognizable as having been created by Ms. Smith and 303 Creative.
Why it matters: Colorado had much more difficulty arguing that Ms. Smith’s refusal to make a website was a denial of service rather than a refusal to make an expressive, original creation that promoted Ms. Smith’s own views.
- The parties agreed that there were other companies in the state and across the country that could provide the services to affected couples that Ms. Smith was refusing.
Why it matters: Colorado had much more difficulty illustrating that turning away LGBTQ+ couples resulted in those individuals having an inability to access a service elsewhere, though this raises troubling parallels to the logic of “separate but equal” (see more below).
Pt 3: The Broader Implications
THIS HOLDING IS NARROW IN SCOPE
The 303 Creative ruling is a narrow holding, meaning it is considered to narrowly apply only to the facts presented. While the Supreme Court has the authority to invalidate entire laws if they find the rule itself to be unconstitutional, it can also determine if a specific scenario, or ones extremely similar to it, are allowed under federal law.
In this instance, they did the latter. The Court did not invalidate CADA, but rather found this instance to be an exception. This means that, except for in situations extremely similar or identical to that in 303 Creative, CADA still validly lays out the rules for nondiscrimination in Colorado.
That being said, the precedent isn’t helpful. The Majority ruled that, although 303 Creative’s wedding website services are offered commercially, they are a form of speech and expression. As a result, it may become much harder to enforce anti-discrimination laws in the context of a person selling personalized websites.
RIPENESS, STANDING, AND THE MELTDOWN OF PROCEDURAL LEGAL NORMS
Many of the most concerning aspects of this decision have much broader implications than LGBTQ+ rights and could undermine important procedural norms through the entire profession. Cases may rarely be argued before any actual harm is experienced, and cases certainly cannot center a hypothetical question altogether.
This case rising to the Supreme Court without an identifiable harm (remember, Ms. Smith hadn’t actually had to deny services to anyone yet based on her religious beliefs) calls into question important legal norms regarding standing (in general the right to use the court system to address a particular problem), and ripeness (the requirement that a conflict is ripe enough for judicial review and is not a mere hypothetical or abstract question). In ruling against Ms. Smith, the 10th District Court did determine that there was a “credible threat” posed to Ms. Smith that Colorado would compel her speech, but none of the courts define what “credible threat” means, let alone the legal standard by which to weigh it. Though the dubious request from “Stewart” may have its own implications, it is the filing and considering of a suit before there has been any injury or legal consequence that sets this case historically apart from others of its kind.
A Note About Gorsuch and Separate but Equal
The purpose behind nondiscrimination laws is to ensure that everyone has equal access to public spaces, including “expressive” businesses like bakeries, photography studios, and calligraphers.
Anti-discrimination laws exist in response to such concepts as the “separate but equal” doctrine put forward by Plessy v. Ferguson. Plessy is an infamous, now overturned case that, at the time, recognized racial segregation as legal and legitimate. It erroneously held that as long as everyone had parallel equal access to public resources, there was no problem in denying those resources to certain groups of people at particular establishments.
For example, if a Black woman wanted to use the restroom at her job, as long as there was another bathroom for her to use, Plessy held that it was perfectly legal to deny her use of the restroom designated for use only by White women. The “separate but equal” doctrine did not take into account the psychological toll of discrimination has on the person being subjected to it, nor accompanying mistreatment, nor the extra hurdles one may have to go through in order to access their designated spaces.
Thankfully, Plessy has since been overturned and is now remembered for what it was: a stain on the legal profession and a painful chapter in American history.
Unfortunately, its resonance apparently continues to this day. Justice Gorsuch didn’t take the realities of being turned away into consideration when he suggested that, because other website designers were available for the 303 Creative’s (hypothetical) LGBTQ+ customers, the discriminatory treatment was harmless. He further argues that public accommodations laws originally existed primarily for businesses who experienced “monopoly power” unless they transported people or goods. Monopoly power meant a business would be the only available option to anyone seeking that kind of service.
By insinuating that as long as a person has somewhere else that they can obtain the same (or relatively the same) services an individual business can refuse them service based on a protected characteristic, Gorsuch is, intentionally or not, creating a platform through which “separate but equal” may become federally acceptable again. He directly says this is not his intention, but it is still important to note that his reasoning logically concludes at just that. Justice Sotomayor expressed similar fears and cautionary statements in her dissent, but for now this is just troubling “dicta” (language used to make an argument but not draw a conclusion of law) and not part of the actual holding of the case.
Pt 4: What does this ruling mean for LGBTQ+ Ohioans?
Is this ruling a blank check for those wishing to use religious objections to discriminate, whether sincere or not?
No. Although this ruling is still new and its effects remain to be seen, the ruling itself only applies to a very small number of potential cases, and only directly applies to situations where a business can be considered to sell and create its own expressive speech. A person cannot discriminate against someone else just because their sincerely held religious belief advocates against a particular person or viewpoint. Though people may attempt to use this decision as a way to break nondiscrimination laws, it is important to remember that their actions are still illegal.
It is, however, concerning that expressive speech is not very well defined by the Court and could theoretically be used by much farther ranging businesses such as salons, restaurants, and tailors. A judge from Texas is already hoping that the ruling will support her unwillingness to provide marriage services to same-sex couples due to her religious convictions. Many, however, do not believe this to be a sound legal argument, and it is yet to be shown whether the facts can be carried over to a case that is so different from that of 303 Creative.
After this ruling, does the Ohio Fairness Act still matter?
Yes. The Ohio Fairness Act (or OFA) aims to provide protections to LGBTQ+ individuals in Ohio’s existing nondiscrimination law by adding sexual orientation and gender identity alongside other categories such as race and sex. The Supreme Court’s ruling does not invalidate any anti-discrimination laws, nor does it give a free pass to everyone who wants to avoid those laws so long as they claim a “sincerely held belief”. Even Colorado’s anti-discrimination law—the subject of this case—is still enforceable.
Why did Colorado agree to things that were so harmful to their case?
Unfortunately, the stipulated facts that proved to be harmful to the case were made before the Masterpiece Cakeshop decision and reflect a very different time in the fight for LGBTQ+ rights. By the time that the case reached the Supreme Court, there was little that Colorado could do to counteract the agreements that it had made earlier in the case with 303 Creative.
As attitudes, laws, and court rulings change around the country, the strategy around pursuing LGBTQ+ equality changes with them. Some strategies that would have previously worked well may no longer work at all, and new innovative approaches are constantly tried by those working for and against equality.
There are legitimate concerns about the impacts of the 303 Creative ruling. It has widened what counts as protected speech, and the misinformation surrounding it will certainly embolden some to cause harm against the LGBTQ+ community. Copycat lawsuits may attempt to further widen or narrow nondiscrimination laws.
Through this, it’s important to remember that proposed and current statewide nondiscrimination laws protecting LGBTQ+ people, including the currently proposed Ohio Fairness Act (SB 132), would be and are still valid. This ruling is not a license to discriminate. It is also important to note that the effects of all Supreme Court rulings through U.S. court systems take years, whether they are good or bad, and that we do not know the full implications of this ruling yet.
In that time, it is very possible to enact change. Here are a few ways you can get involved:
Help increase nondiscrimination protections through Congress. Cast your vote in all Congressional elections—they have a direct impact on legislation.
Know your national reps. Find your current representatives in the Senate and your district’s House representative on the congressional website and tell them to support equal protections for all.
Know your rights locally. State and local elections also matter, as these are the people who directly impact what happens in Ohio. Use the House district map or the Senate district map to find your local leaders. Presidential elections are important, but it is the local level that truly runs your community.
Just over half of the United States, including Ohio, are still working to pass nondiscrimination laws. However, many municipalities have taken their own action to increase protections for LGBTQ+ people in the meantime, including 35 local municipalities and counting here in Ohio. If your local area does not have protections locally yet, get vocal—testify, donate, join city council, take action any way you are able. It is only through our collective power that we will turn the absurdity of legalized hate around.
What was Said to the Supreme Court (click the Oral Argument button)
Ohio’s support of 303 Creative as Amicus Curiae