Free Speech and Free Exercise Were Both at Stake in 303 Creative v. Elenis

July 5, 2023

By Nathan Berkeley

Last Friday, the U.S. Supreme Court handed down a landmark decision in 303 Creative v. Elenis, defending the freedom of graphic artist and website designer, Lorie Smith, to refrain from communicating messages that violate her religious convictions. The Court’s majority opinion rightly vindicated Smith’s freedom of speech as provided in the First Amendment. The enhanced protections for Free Speech this decision affords should be applauded, even while its omission of Free Exercise is disappointing. 

The Court’s majority held, “The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.” The ruling protects everyone engaged in expressive commercial activities by drawing an important line that the government may not cross.

As stated in the majority opinion, those on both sides of this case agree “that Ms. Smith ‘will gladly create custom graphics and websites for gay, lesbian, or bisexual clients or for organizations run by gay, lesbian, or bisexual persons so long as the custom graphics and websites’ do not violate her beliefs.” (17) She will serve all customers but will not endorse every message requested of her. And she should not be compelled by the government to communicate such messages. Last week’s ruling rightly protects Smith from this harmful government encroachment.

A key challenge in many cases that appear to pit constitutionally protected freedoms against “sexual orientation and gender identity” (SOGI) anti-discrimination rules is found in how the purported discrimination is framed. In their December 2022 op-ed, RFI’s Ismail Royer and the Jewish Coalition for Religious Liberty’s Howard Slugh offer a helpful corrective to common misunderstandings on this front when they write: “[Lorie Smith] serves customers of all races, faiths, creeds, and sexual orientations, but she politely declines to design pages expressing messages that contradict her faith.” They continue:

Let’s be clear about what this case is not about. It is not about a right to exclude customers because of their sexual orientation. If Lorie refused to serve gay customers regardless of the message expressed by their proposed webpages, the legal issues would be different. This case is about whether an artist must promote messages she considers objectionable, not whether Colorado can prohibit discrimination on the basis of protected characteristics.

Further scrutinizing the nature of the discrimination at issue in this case, Emilie Kao of Alliance Defending Freedom raises the crucial matter of dignitary harm. In her article in the Spring 2023 edition of the Harvard Journal of Law & Public Policy she writes:

Colorado claims that it has a compelling interest in ensuring that members of protected classes are shielded from ‘dignitary harm.’ That dignitary harm, though, consists merely in a creative professional declining to endorse their desired message…A government interest in protecting citizens from the emotional and moral distress of disagreement is intrinsically distinct from the material and dignitary harms created by status-based denials. Therefore, courts should treat the claims arising from these distinct interests differently. (1-2)

Bringing her reasoning full-circle, Kao concludes:

Permitting stand-alone dignitary harm to create a right to endorsement and corresponding duty to endorse would misapply anti-discrimination law. It would ignore how the government demeans a person by forcing her to speak messages that undermine her own convictions. (9)

Thankfully, the Court secured Lorie Smith against future adverse action that the state of Colorado might have taken in its enforcement of the Colorado Anti-Discrimination Act. While the majority opinion acknowledged that the government has a legitimate interest in protecting the dignity of its citizens through anti-discrimination measures, it also reaffirmed the Court’s recognition that “no public accommodations law is immune from the demands of the Constitution.” Citing the Supremacy Clause, which provides that the Constitution takes precedence over conflicting state laws, the Court wrote: “When a state public accommodations law and the Constitution collide, there can be no question which must prevail.”

Accompanying the Free Speech and anti-discrimination considerations in this case, even if the Court decided not to go there, are the matters of Smith’s religious freedom and what the Court said in Obergefell v. Hodges (2015) about those who continue to hold that marriage is the union of husband and wife. The lower court’s holding in 303 Creative that a faith-based business must endorse “same-sex marriage” violated the Supreme Court’s assurance in Obergefell that religious freedom, including vigorous protection for religious speech, would not be threatened by its finding of a constitutional right to “same-sex marriage” (RFI joined an amicus brief emphasizing this point). Had the Supreme Court decided against Smith, it would have betrayed this assurance.

Unfortunately, the religious freedom question was not directly dealt with by the Court. While Alliance Defending Freedom, which provided Smith’s legal defense, initially framed this case as encompassing both Free Exercise and Free Speech, the Court expressly confined it to the latter. Given that Colorado’s interpretation of its anti-discrimination law imperiled Smith’s religious freedom, as well as her freedom of speech, as evident in similar cases such as those involving Masterpiece Cakeshop, this narrowing of the case’s scope is regrettable. 

The Court’s decision in 303 Creative v. Elenis merits celebration on multiple levels, but more was at stake than Lorie Smith’s constitutional right to Free Speech.

Nathan A. Berkeley is RFI Communications Director and Research Coordinator.