Justices Hear Colorado Web Designer’s Public Accommodation First Amendment Appeal

The U.S. Supreme Court Building. A large white, stone building with pillars and long steps leading up to it.
The U.S. Supreme Court justices pressed attorneys about the relationship between public accommodation laws and freedom of speech at oral arguments Monday. / Law Week file.

The U.S. Supreme Court justices pressed attorneys about the relationship between public accommodation laws and freedom of speech at oral arguments Dec. 5 in a Colorado web designer’s appeal.

The justices brought up plenty of hypotheticals meant to clear up arguments from Lorie Smith, the owner of Denver-area custom website design company 303 Creative, and attorneys for the state of Colorado and U.S. Department of Justice. 

The case, 303 Creative v. Elenis, could have sweeping impacts on the legal definition of speech and the reach of class-based discrimination protections. 

“It is not about religious base concerns or exemption and based on religion. It’s a broad free speech claim, which means anyone’s moral objections would be relevant,” said Colorado Attorney General Phil Weiser in a press conference following oral arguments. “In the argument, it was clear that the justices understood the gravity of this case, both the importance of protecting the principle that we’re advocating for, a principle that has roots in the 1860s in Colorado.”

The nation’s high court agreed to hear Smith’s appeal after a 10th Circuit Court of Appeals panel sided against her on a pre-enforcement challenge against provisions of the Colorado Anti-Discrimintaion Act. Among other things, CADA prevents public accommodation providers from denying their services to people based on protected classes including sexuality, gender, race and disability. CADA also prevents businesses from posting messages that they do not offer service to people based on protected characteristics. 

Smith brought a federal pre-enforcement challenge against CADA. Smith says she would like to offer a range of custom wedding website design services but would not offer the services to same-sex couples due to her religious beliefs. Smith thinks building a website would constitute her endorsement and celebration of same-sex marriage. According to Smith, CADA imposes an unconstitutional limitation on her freedom of speech forcing her to stay silent or speak a message contrary to her view. As a pre-enforcement challenge, Smith hasn’t actually offered any wedding services or violated CADA.

Without a fact pattern to base its findings on, Weiser said the court’s ruling could have sweeping effects. “If the court were to rule in [Smith’s] favor, it’s not as if we have a clear set of facts that the court is ruling based on… which to our mind, raises a concern of an overbroad exemption.”

At the heart of the case are tricky questions about the definition of services versus speech, the potential consequences of adopting Smith’s view and what protections public accommodation laws can actually provide. At over two hours of oral argument on Monday, the justices pressed both parties on the core of these issues. 

The U.S. Supreme Court will publish its ruling on the case by the end of its 2023 term, likely in the late spring or early summer next year. 

Service vs. Speech 

Minutes into oral argument, Justice Elena Kagan asked Smith’s attorney Kristen Waggoner, general counsel and CEO of conservative public interest organization Alliance Defending Freedom, to narrow down when a website can be considered a designer’s speech versus a vessel for a client’s speech. 

Looking at a sample design by Smith, Kagan said she didn’t see the website so much as a celebration of marriage and more as an informational tool about the couple’s story and wedding logistics. Hypothetically then, Kagan asked, why would it be considered an endorsement of marriage and why would Smith design an identical site for a heterosexual couple but not a same-sex couple? 

“We know context changes, meaning … even the same words have different meaning,” responded Waggoner, who explained her client would decline to make a website for a same-sex couple even if it meant only swapping out the names, dates and pictures from an already built website. 

The justices asked Waggoner how her interpretation would apply to Smith if instead of designing websites, she catered, baked cakes or rented chairs and tables to weddings. Would Smith also be speaking by providing those services to same-sex couples? 

It depends, said Waggoner, who urged the court to apply the compelled speech test created by the 1995 Supreme Court Ruling in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston: Is there speech? And if so, is the message of speech affected by the customer? 

“The person providing the chairs isn’t providing speech. But when you are engaging in symbolic speech, whether that be through the creation of a custom wedding cake or a custom wedding website, you are creating speech,” responded Waggoner. 

Eric Olson, the solicitor general at the Colorado Attorney General’s Office, represented Colorado at oral arguments. 

Chief Justice John Roberts asked Olson how Colorado’s position fits in with former rulings by the Supreme Court which found not all public accommodations fit into the same category. “Foster care and adoption is not the same thing as a seat on the bus or a room in a hotel,” said Roberts. 

Olson responded that most artists are not public accommodations, but Smith considers herself an accommodation as well as an artist. Since the case is a pre-enforcement challenge, Olson added, it’s hard to parse out whether or not Smith’s wedding website designs would fall into the category of art or services. 

“I think here, again, the record is entirely devoid of those factors because the company chose to litigate this case as a public accommodation. I think a lot of the description that we heard today would be powerful arguments that they may not be a public accommodation in what they do. But we simply don’t have those facts here,” said Olson. 

Much of Colorado’s arguments rested on the Supreme Court’s 2005 ruling in Rumsfeld v. FAIR, which found law schools must provide the same services to military recruiters as other prospective employers (a room on campus, posting recruitment event flyers, sending notice to students, etc.) despite objections to the military’s former don’t ask, don’t tell policy. 

Roberts asked Olson to explain why Rumsfeld applied to his case. 

“In FAIR, it recognized that there was some speech by schools … there was some speech but it was incidental … to the purpose of regulation which was ensuring equal access, similar to Colorado’s law here,” said Olson. “The second point I would make, and it comes from the example of the same-sex couple but provided to the opposite-sex couple, here, sometimes the speech does not change. And that is what this company seeks … is a total permission to turn away every same-sex couple, even if they seek the exact same website that [for] an opposite-sex couple they will provide.” 

What’s the Scope? 

The justices presented attorneys with a number of hypotheticals about what a ruling in favor of Smith could mean for other protected classes. 

Justice Ketanji Brown Jackson presented a hypothetical where a photographer offers a service creating stylized 1940s and 1950s photographs of Christmas meant to capture that era’s essence of Christmas. The service is available to the public but is custom, since the photographer edits each photo and directs the photo shoot. Since the photographer wants the photos to reflect their view of Christmas in the 1940s and 1950s, they will only photograph white children and families. Under Smith’s view, Jackson asked, would the photographer be allowed to deny the service to clients based on his views about race and art? 

Waggoner responded in that hypothetical she wasn’t sure if the photographer’s message would be conveyed in the product, so she didn’t know. “That same clarity of the message isn’t in that photo, but there are difficult lines to draw and that may be an edge case, but this is not.”

In multiple hypotheticals, Waggoner was hesitant to say whether or not a ruling in Smith’s favor could lead to denial of service based on protected classes other than sexuality such as race, disability or religion. 

“In Obergefell, did the Court say that religious objections to same-sex marriage are the same thing as religious or other objections to people of color,” asked Justice Samuel Alito. 

Waggoner responded by referencing the Supreme Court’s 2015 ruling in Obergefell v. Hodges which stated people can oppose same-sex marriage based on “decent and honorable religious or philosophical premises.” 

Following up on the response, Justice Sonia Sotomayor asked Waggoner how the court would write an opinion that would allow for the denial of services based on beliefs about sexuality but exclude other protected classes like race and disability. Sotomayor asked again if the denial of service for all protected classes would be allowed as long as a service is considered speech. 

“I’m saying that the interracial couple, the disabled person, the lesbian graphic designer, the Democrat, the Republican, no one should be compelled to speak a message,” said Waggoner. 

Brian Fletcher, the acting solicitor general of the U.S., joined Colorado as amicus curiae representing the U.S. 

In his opening statements, Fletcher emphasized the U.S. is interested in the case due the potential sweeping impacts the ruling could have. “It means that any provider of expressive services is entitled to put up a sign saying we do not serve people with particular characteristics whenever they believe serving those people would change their message,” said Fletcher. 

Fletcher added Jackson’s hypothetical about the Christmas photographs is an exact scenario the U.S. is concerned could happen if the Supreme Court sided with Smith. 

“We think that’s a very sweeping accommodation that’s inconsistent with the Court’s admonition in Masterpiece Cakeshop that any sorts of carve-outs in these areas have to be carefully cabined to avoid undermining the government’s compelling interest in ensuring that all Americans have equal access to the public marketplace,” added Fletcher. 

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