By Elizabeth Wellhausen*

In December 2022, the Supreme Court heard oral arguments for 303 Creative v. Elenis, a case that is basically a “redo” of Masterpiece Cakeshop v. Colorado Civil Rights Commission.[1] In Masterpiece, a baker refused to make a wedding cake for a same-sex couple because same-sex marriage conflicted with his religious views.[2] The Colorado Civil Rights Commission argued that the baker’s refusal violated Colorado’s Anti-Discrimination Act which prohibited places of public accommodation from discriminating based on sexual orientation.[3] However, the Court avoided ruling on the free speech and free exercise of religion claims by deciding that the commission violated its duty of neutrality by showing hostility towards the baker’s religious beliefs.[4] Therefore, the Court reversed but did not decide whether the baker was entitled to discriminate based on his religious views.[5]

The Court is reviewing the same Colorado law in 303 Creative. In this case, a website design company alleges Colo. Rev. Stat. § 24–34–601(2)(a) (2017) violates the founder’s rights to freedom of speech and freedom to exercise her religion by requiring her to design wedding websites for same-sex couples.[6] The Court agreed to hear the case but with a twist; it would only hear arguments based on the free speech issue, not the free exercise issue.[7] Thus, the seemingly narrow question in front of the Court is whether an anti-discrimination law compelling an artist to speak (or stay silent) violates an artist’s First Amendment right to freedom of speech.[8]

It is unclear why the Court declined to hear the free exercise clause arguments, but it could be that framing the issue around speech was more attractive to the Justices because the Court perceives speech to be more ideologically neutral than religion.[9] Ms. Waggoner, 303 Creative’s counsel, during oral arguments took advantage of this neutrality aspect by arguing in favor of values the opposition would likely support.[10] For example, Ms. Waggoner spoke about how the First Amendment protects a Black sculptor from being compelled to create  a custom cross for an Aryan rally thereby protecting the artist from expressing racist views.[11]

Given the wide array of possible implications from a decision in this case, the Justices posed numerous hypotheticals, varying in degree of peculiarity, to test the limits of each side’s arguments. For example, the Court asked: Could a speech writer be compelled to write a press release for the Church of Scientology when the writer vehemently opposed the Church’s views?[12] Could a web designer refuse to make a wedding website for a disabled couple or an interracial couple?[13] Could a photography business refuse to take pictures of Black children with a white Santa Claus?[14] Could a Black Santa Claus be compelled to take a photo with a white child dressed in a KKK outfit?[15]The list of hypotheticals the Court posed were extensive, and the answers were not very satisfying with neither side articulating a clear limit to the application of the law or the free speech exclusion. Ultimately, it was troubling to consider that if an artist could refuse to serve a same-sex couple because providing services to the couple violated the artist’s convictions, then why couldn’t the artist refuse service to an interracial couple or a disabled couple? What is the limit? How are the Justices supposed to decide where to draw the line?

Another point of confusion was the distinction between status and content. Both parties agree that the First Amendment protects the content of a person’s speech, including speech involved in services.[16] This means a person cannot be compelled to write on a cake or create a web design with a message that the creator finds objectionable. However, the state can require the creator to sell to everyone regardless of their membership in a protected class.[17]Nevertheless, the distinction between content and status is illusory in the context of same-sex couples because the discrimination they face is inherently based on their status.[18] The artist’s refusal to design a website for a same-sex couple because the artist objects to celebrating same-sex marriage is based on the artist’s objection to the couple’s status as a same-sex couple. The artist does not oppose the message they are writing in general. For example, the artist would not oppose creating a website design saying, “Come celebrate our wedding with us on June 4, 2023” for an opposite-sex couple. However, the artist opposes the message for a same-sex couple because of the status of the couple requesting the design. The message and the status of the individuals requesting the message are thus inextricably intertwined. Similarly, as noted in the oral arguments, “[a] tax on wearing yarmulkes is a tax on Jews” because yarmulkes are inextricably intertwined with the Jewish culture and religion.[19] The fact that a non-Jewish person could wear a yarmulke or that not all Jewish people wear yarmulkes does not change the practical effect that a tax on yarmulkes targets a particular class.[20] In the context of sexual orientation, marriage is central and inextricable linked to a person’s identity, and a website design (the artist’s creation or message) is objectionable because of the status of the couple getting married.

Given the breadth of the possible implications in this case–—that a place of public accommodation could refuse service on any number of factors including race and sex—the Court will likely find some limiting factor to narrow the application of the free speech exclusion to public accommodation laws. One possible limitation could be that the exclusion only applies to artists when a reasonable person would understand that the artist is endorsing the message created for the customer.[21] For example, a website design could be considered the words of the couple requesting the design, not that of the web designer.[22] If the message created is not an endorsement, then it does not create a theological or moral burden on the designer, and therefore is not protected by the First Amendment.[23]

It is also possible that the Court will distinguish sexual orientation from race and sex.[24] The Court could decide that the constitutional protections of race are more concrete, and objections to race protections are not based on legitimate religious ideologies.[25] However, the distinction between sex and sexual orientation is more blurred since Bostock where the Court held that discrimination based on sexual orientation is inherently discrimination based on sex.[26] Therefore, the hypothetical that a photographer could refuse to take headshots for a woman because the photographer believes that women should not be in the corporate world could be a legitimate exercise of freedom of speech if the Court accepts Petitioner’s arguments.[27]

Lastly, the decision in this case could impact other areas of law including the interpretation of federal anti-discrimination legislation such as Title VII. There is no reason to believe that the analysis applied to this case could not apply to discrimination based on sexual orientation in the employment context as well.[28] While this decision could have repercussions on federal anti-discrimination laws, challenges to anti-discrimination laws grounded in First Amendment protections are occurring independently of 303 Creative. For example, after Bostock, it was unclear how Title VII would apply to religious employers that discriminated based on sexual orientation.[29] However, in a recent case, a court in the Fifth Circuit held that a church was exempt from Title VII and could discriminate based on sexual orientation.[30] As discrimination protections for different groups—especially same-sex couples— expand, this tension between the First Amendment and anti-discrimination laws at all levels of government will build and require courts to draw a line between these adverse interests.

It is unclear how the Court will decide this case, how it will limit the holding, how the holding can be applied to other areas of law, and whether challenges based on the free exercise clause will still be viable after this case. It seems likely that the Court will limit the application of the freedom of speech clause, since many Justices seemed hesitant to hold that freedom of speech would allow artists to discriminate based on race and sex. However, the Court seemed unsure with how to limit the application of the free speech clause and how to distinguish content from status to determine when a speech exclusion from anti-discrimination law could apply. While there is still much uncertainty, since the Court decided to hear this case after avoiding the freedom of speech issue in Masterpiece, the Court will likely decide the case on free speech grounds and provide guidance for courts wrestling with these issues moving forward.

[1] Amy Howe, Colorado Web Designer’s First Amendment Challenge Will Test the Scope of State Anti-Discrimination Laws, Scotus Blog (Dec. 2, 2022), https://www.scotusblog.com/2022/12/colorado-web-designers-first-amendment-supreme-court-lgbtq-anti-discrimination-laws/.

[2] Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, 138 S. Ct. 1719, 1724 (2018).

[3] Id. at 1725 (citing Colo. Rev. Stat. § 24–34–601(2)(a) (2017)).

[4] Id. at 1732.

[5] Howe, supra note 1.

[6] 303 Creative LLC v. Elenis, 6 F.4th 1160, 1169–70 (10th Cir. 2021), cert. granted in part, 142 S. Ct. 1106 (2022).

[7] 303 Creative LLC v. Elenis, 142 S. Ct. 1106 (2022).

[8] Id.

[9] See The Williams Institute at UCLA, LGBTQ at the Supreme Court: What to Expect in 303 Creative v. Elenis, at 56:00 (Dec. 13, 2022), https://williamsinstitute.law.ucla.edu/events/303-creative-webinar/.

[10] See Transcript of Oral Argument at 4, 25, 303 Creative v. Elenis, 142 S. Ct. 1106 (2022) (No. 21-476),

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/21-476_8n59.pdf.

[11] Id. at 4.

[12] Id. at 86.

[13] Id. at 13, 22–23.

[14] Id. at 26–27, 121–22.

[15] Id. at 75.

[16] See id. at 43, 58, 126–28.

[17] Id. at 115.

[18] Id. at 124 (“[R]efusing to serve for same-sex marriages is discrimination against . . . gays and lesbians because status and conduct is [sic] inextricably intertwined.”).

[19] Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993); see Transcript supra note 10 at 125.

[20] See Bray, 506 U.S. at 270.

[21] Strict Scrutiny, How the 303 Creative Case Threatens to Roll Back the 21st Century, Crooked Media, at 1:07:45–1:11:03 (Dec. 12, 2022); see Transcript, supra note 10, at 105–08.

[22] See Transcript, supra note 10 at 6–13; The Williams Institute at UCLA, supra note 9, at 42:20.

[23] See The Williams Institute at UCLA, supra note 9, at 43:07.

[24] See Id. at 32:00; Transcript, supra note 10, at 29.

[25] See Transcript, supra note 10, at 29, 80–81; cf. The Williams Institute at UCLA, supra note 9, at 21:58.

[26]Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731 (2020).

[27] See Transcript, supra note 10, at 122.

[28] See The Williams Institute at UCLA, supra note 9, at 22:53.

[29] Lawrence J. Del Rossi, Bostock Six Months Later and Open Questions About Title VII’s Religious Organization Exception, Faegre Drinker(Dec. 01, 2020), https://www.faegredrinker.com/en/insights/publications/2020/12/bostock-six-months-later-and-open-questions-about-title-viis-religious-organization-exception.

[30] Bear Creek Bible Church v. Equal Emp. Opportunity Comm’n, 571 F. Supp. 3d 571 (N.D. Tex. 2021).

 

*Elizabeth Wellhausen is a Managing Editor for JLI Vol. 41.