Navigating The U.S. Supreme Court's Decision In 303 Creative LLC And Its Implications On First Amendment Rights In The Workplace

• Jurisdiction: United States,Federal
• Law Firm: Ford & Harrison LLP
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Trials & Appeals & Compensation
• Author: Shannon Kelly and Richard Bahrenburg
• Published date: 10 July 2023

Executive Summary: On June 30, 2023, the U. S. Supreme Court issued its ruling in 303 Creative LLC v. Elenis. At issue in the case was a pre-enforcement challenge to Colorado's public accommodation law, which prohibits businesses from engaging in discrimination when selling goods and services, and whether the law violates a graphic designer's First Amendment protections by requiring her to create wedding websites for same-sex couples. The Court's majority held that by creating wedding websites, rather than merely selling a simple good or service, the graphic designer is engaging in "pure speech," and thus compliance with Colorado's law requiring her to create wedding websites for same-sex marriages, which she professed to have a religious objection to, would violate her free speech rights under the First Amendment.

Background

Lorie Smith, a graphic designer and owner of 303 Creative LLC, was considering the expansion of her services to include creating wedding websites. Prior to doing so, Smith filed suit in the United States District Court for the District of Colorado seeking to enjoin the Colorado Civil Rights Commission from enforcing the state's anti-discrimination law against her based on her policy of refusing to provide services for same-sex weddings. She asserted that if she was forced to follow Colorado's Anti-Discrimination Act (CADA), it would violate her First Amendment Right against compelled speech in violation of her sincerely held religious belief that marriage is between a man and a woman. The CADA provides in relevant part that:

It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.

Colo. Rev. Stat. '24-34-601(2)(a).

The CADA also prohibits businesses that provide services from advertising that such services will be "refused, withheld, or denied" or that an individual is unwelcome based on those protected characteristics.

The District Court dismissed Smith's suit. Smith appealed to the Tenth Circuit Court of Appeals, which affirmed, holding that the CADA did not violate Smith's First Amendment rights based on strict scrutiny. Strict scrutiny is the highest...