On Monday, the Supreme Court heard arguments in the case of 303 Creative LLC v Ellen’s, a case relating to a Colorado website designer’s claims that the state’s discrimination laws would violate free speech rights protected under the First Amendment.
According to SCOTUSblog, 303 Creative LLC owner Lorie Smith, a devout Christian, wants to expand her business to include building wedding websites but does not want to design websites for same-sex weddings and announce publicly on her website that the company would not be undertaking these projects.
Colorado’s Anti-Discrimination Act (CADA), states that "Coloradans are entitled to the full and equal enjoyment of all goods, services, facilities, privileges, advantages, or accommodations offered to the public, regardless of protected class."
Smith argues that "applying CADA to her would violate the First Amendment because it would require her to create messages that are inconsistent with her religious beliefs, and it would bar her from announcing those beliefs on her website," according to SCOTUSblog.
Smith has said that her decision to undertake a project is not related to the identity of the person requesting the work, but rather the message that would be conveyed. For example, Smith said she would "happily" design a website for an LGBTQ customer running an animal shelter, but would not take on clients promoting messages inconsistent with her Christian beliefs, like promoting same-sex marriage.
A similar case was handled in 2018, where justices ruled narrowly in favor of Colorado baker Jack Phillips, who refused to bake a custom cake for a same-sex couple because he believed it would violate his religious beliefs.
Attorney Kristen Waggoner with Alliance Defending Freedom, representing Smith, told the court that the state declares Smith’s "speech a public accommodation, and insists that she create and speak messages that violate her conscience."
"She’s not asking this court to create new law, but to apply its precedent. Colorado first says this case is about a sale. It’s not about a sale. The state forces Ms. Smith to create speech, not simply sell it. Next, Colorado says it can compel speech on the same topic, but Ms. Smith believes opposite-sex marriage honor scripture, and same-sex marriage contradicts it," said Waggoner.
Justice Sonia Sotomayer argued that these "standard websites," listing information like dates, locations, and registries, are not listing any sort of "ideology," and that the website would theoretically be the same if it was a "same-gender" couple versus an "opposite-gender" couple.
"There’s really nothing about the content of this speech," Sotomayer told Waggoner.
"No, it’s not about the use," said Waggoner. "It’s about when a person is creating speech, it is what is the message they are expressing."
"The Hurley framework asked this court to first look at is their speech, and there clearly is words, graphics, texts, videos, pictures, that’s speech, and it’s generally protected. The second is to ask, is the speaker’s message affected? And when you’re requiring a speaker to create a message to celebrate something that they believe to be false, you’re compelling their speech and it’s affecting their message," Waggoner said.
Waggoner later stated that even if the wedding websites are the same for two different couples of different identities, the meaning behind the website changes.
Justice Karan questioned how the website could be seen as the creators message when it’s the engaged couple that is sending the website to their family and friends. "So how has it become your message?"
"In the same way that it is a message of a ghostwriter who writes an anonymous press release or a book, it is still that writer’s speech. The whole point of the compelled speech doctrine is to ensure that it’s the — " Waggoner responded, before being interrupted.
Kagan questioned "where’s the line," noting people who may disagree with interracial marriages or marriages between people who are disabled.
Justice Amy Coney Barrett questioned Waggoner as to whether her client would create a website for two heterosexual individuals who met at work, fell in love, and divorced their current partners to be with each other.
Waggoner responded that no, she doesn’t believe that her client would create a website for this couple, as it is a message that she doesn’t agree with fundamentally.
Questioning those attorneys representing the state, Justice Brett Kavanaugh noted a hypothetical about a publishing house that refuses to publish pro-life positions.
"I’ve been thinking about publishing house that says we’re not going to publish, we support pro-choice positions, we’re only going to publish books that support pro-life positions, or that we support same-sex marriage and we’re not going to publish books that take a different position on same-sex marriage," he said.
The attorney stated that a publishing house is not a public accommodation as described under Colorado law "for precisely the level of selectivity and choice that goes into it."
"But if it were a public accommodation, it would still have a First Amendment right, correct?" Kavanaugh questioned.
"Yes," the attorney responded, "because what all the public accommodation law says is you can’t turn someone away because of who they are," adding that
During questioning of the state, Justice Barrett brought up the hypothetical situation of a paper or outlet honoring Pride Month by choosing to only publish marriage announcements of same-sex couples.
"Let’s say a newspaper is running, as many newspapers do, runs marriage announcements. So, you know, the New York Times says that such announcements which it picks have to satisfy its normal editorial standards. Let’s just say that the newspaper, for Gay Pride Month, decides that it’s going to run, to promote and recognize same-sex marriage, only same-sex marriage announcements, turns away heterosexual announcements, not because it disparages or disagrees with opposite-sex unions, but because it’s trying to promote something else. Can it do that?"
The attorney said that Barrett’s hypothetical is a "hard one," seeing that "normally the marriage announcements are considered to be a public accommodation, but your interim hypothetical introduces a layer of editorial discretion."
Barrett noted that they would seemingly be a layer of editorial discretion at all times, because "we can’t run every marriage announcement that comes in."
"In that circumstance, if the sole basis for picking and choosing is a protected characteristic, The New York Times couldn’t say that we’re going to have this month, we’re going to run opposite-sex weddings, next month we’re just going to run white people weddings."
At the center of arguments was whether the speech at the center of the case is free speech or compelled speech, meaning whether the state of Colorado had "compelled" Ms. Smith to write messages that she fundamentally disagrees with.
In closing, Waggoner said, "this right to be free from government coercion of speech is also foundational to our self government, and to the free and fearless pursuit of truth."
"In the end, it is not Ms. Smith who is asking you to change the law, but Colorado. This court should affirm again the public accommodation laws cannot be used to compel speech, and this includes artistic expression, photography, painting, calligraphy, and films, forms of media that the lower courts have shockingly refused, refused to recognize this speech when it comes to marriage."
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