Open for (Strictly Heterosexual) Business!

In June of 2023, the Supreme Court in 303 Creative, Inc. v. Elenis addressed the question of whether applying an anti-discriminatory public accommodation law to compel a business open to the public to provide wedding website designs without discriminating against same-sex couples violates the First Amendment free speech protection.

The law in question, the Colorado Anti-Discrimination Act (CADA), requires businesses that choose to serve the public to not discriminate among its clientele based on protected characteristics. 303 Creative, a website design company, sought an exemption from enforcement of the law because its services are “expressive,” “creative,” “artistic,” and “customized” for each unique client, and therefore could not be compelled to provide such services to a wedding to which 303 Creative is ideologically opposed. It claimed that by being compelled to make such a website, the state would be compelling 303 Creative to “endorse” a wedding that conflicts with the company’s ideology.

The State of Colorado contended that applying its statute to 303 Creative to require it to provide the same services to a same sex couple that it would to any other couple does not violate the First Amendment. The statute does not target artists, but instead business that are open to the public, and does not create exceptions for “creative” services and is therefore a content-neutral regulation subject to intermediate scrutiny. Colorado, with its statute, sought to require businesses which benefit from being open to the Colorado public to not discriminate against people based on their identity.

The Supreme Court, for the first time in its history, held that a business offering creative services has the right to violate state anti-discrimination laws, allowing them to discriminate against historically marginalized groups. In a 6-3 opinion, the Supreme Court held that the Colorado statute would compel 303 Creative to provide a service to same-sex couples that it would not provide to anyone, effectively compelling her speech.

A particularly chilling application of this ruling to the everyday lives of historically marginalized communities is the inability to divorce one’s identity or status from the supposed “compelled speech.” To illustrate: many Evangelical Christians believe that transgender people are “affronts to [the Evangelical Christian] God” merely by existing. Taking Mississippi, for example, 83% of the population identifies as some flavor of Christian. If 83% of the state’s adult population may now deny “creative” services to transgender people, as acknowledging their existence would be contrary to their ideology, transgender people are now able to be effectively excluded from the majority of the “creative” marketplace in this state.

This opinion leaves many questions unanswered. For example, photography has long been considered a creative service warranting First Amendment protections. Now, after the 303 Creative decision, a photographer may object on ideological grounds from photographing a transgender person, as creating that photograph is now exempted from anti-discrimination statutes. A printing service may be able to refuse service to a gay couple for any print materials on which both of their names appear in a way that could imply that they are a couple. Websites and social media services may decide to forbid any LGBTQ+ media or discussion from being posted on their platforms, as under this opinion, that may constitute “speech” on the platform’s part. Internet Service Providers may decide that providing their unique internet services to websites that host “objectional” content is endorsing said content. The line is unclear and has terrifying implications for marginalized groups.

The Supreme Court has now tasked the lower courts to try to find the line where a service is sufficiently “creative” to warrant a license to discriminate. This opinion assigned an impossible task for the courts and thrust the rights of historically marginalized groups into a lamentable state.

The views and opinions express in this blog post are solely those of the author and do not necessarily reflect the official policy or position of Mississippi College, Mississippi College School of Law, or the Law Review. The author is solely responsible for the content of this post. The information provided in this post is for general informational purposes only and should not be construed as legal advice.