The U.S. Supreme Court closed out its 2022 term with landmark rulings last week including on 303 Creative v. Elenis, an appeal out of Colorado that challenged parts of the state’s public accommodation law.
The decision has opened questions in Colorado and across the country around expressive conduct, anti-discrimination laws and the First Amendment, according to legal experts.
In its June 30 ruling, the 6-3 majority of the court found that the Colorado Anti-Discrimination Act would force a Denver-area website designer to express messages she disagreed with in violation of the First Amendment.
Lorie Smith, the owner of 303 Creative, filed a lawsuit that argued Colorado’s law prohibiting businesses from denying services to customers based on protected class membership, including sexuality, would have forced her to speak a message she disagreed with. Smith argued that while she wanted to offer custom wedding websites, she couldn’t do so since she would need to offer the service to same-sex couples as well as heterosexual couples. She claimed that by creating websites for same-sex couples, she would be forced to endorse gay marriage which she disagrees with.
The Supreme Court agreed with Smith that custom wedding website design is a form of expressive conduct and CADA cannot compel a business to offer services that express a message the creator disagrees with.
On the Ground Impacts
While Smith objected to providing services to LGBTQ+ couples getting married, Holland & Hart appellate partner Christopher Jackson and University of Colorado Law School professor Scott Skinner-Thompson said the court’s ruling could allow businesses to deny services to people based on race, gender or other protected classes when they argue the services are expressive.
“Public accommodations laws are very common. They were passed mostly in the wake of the civil rights movement, trying to prevent discrimination on things like the basis of race,” explained Jackson, who co-chairs Holland & Hart’s appellate practice group. “This doesn’t apply just to same-sex weddings … this has a much broader potential impact and this rule is going to cut across a lot of different areas of law.”
Skinner-Thompson, whose research revolves around constitutional law, civil rights, privacy law and LGBTQ+ issues, said the ruling will likely have a disproportionate impact on people living in more rural parts of the U.S. where there might not be other options if a business denies a service or product to someone based on a protected class.
“The fact that businesses have now been given authority to discriminate so long as they can couch their objection on the business as some sort of as an expressive activity, it sends a message to queer people and make no mistake, you know, this isn’t limited to queer people,” said Skinner-Thompson. “There are going to be many instances where people are discriminated against and it’s just not enforced or people are now going to have to live in fear of being discriminated against.”
Drawing the Line of Expression
While the court held custom wedding website design is a form of expressive conduct, the opinion didn’t parse out what exactly divides commercial products from expressive conduct.
According to Jackson and Skinner-Thompson, lower courts will probably try to draw that line going forward.
“The limit that they imposed deals with when a business is engaged in some kind of expressive activity,” explained Skinner-Thompson. “The next sort of frontier and question [is] going to be around what are the limits of what counts as expression.”
At oral arguments last December for the case, hypotheticals from both sides and the justices attempted to draw that line. Attorneys and the justices considered if other commercial products, such as custom holiday photos, cakes or speeches, could be considered expressive.
“Those examples point out how hard it is to draw these kinds of lines in ways that make sense. And the majority did not grapple with those at all or explain what the answer is,” said Jackson. “So I think that’s a big, open question.”
Jackson said the majority opinion written by Justice Neil Gorsuch didn’t address many of those hypothetical situations meaning in the future, litigation will probably try to draw that line.
First Amendment Implications
The ruling also has implications for the First Amendment moving forward, according to the two attorneys.
“To me, this opinion is in line with where the newly constituted 6-3 conservative Supreme Court is going in — that it’s emphasizing the First Amendment,” explained Jackson. “It is reading the First Amendment in an expansive way, and is doing so particularly in cases involving religion and public life.” Jackson said even though this case was decided on freedom of speech grounds, the case was closely tied to Smith’s religious beliefs and how those religious beliefs impact public life.
Skinner-Thompson said the ruling is in line with a larger trend of using the First Amendment as a tool to challenge government regulation, also sometimes called First Amendment Lochnerism, and shows the current Supreme Court is open to such arguments.
“I think that it fits within a broader movement that’s going on where the First Amendment is being used as a deregulatory tool, and is chipping away at a whole host of government regulations, not just for civil rights, but consumer protection,” explained Skinner-Thompson.
The 303 Creative ruling also shows a shift in the U.S. Supreme Court compared to how it resolved a similar appeal five years ago in 2018’s Masterpiece Cakeshop v. Colorado Civil Rights Commission, Skinner-Thompson said. “We had a court that was very modest, decided things on the narrowest grounds, we don’t have that anymore.”
While the latest ruling has been viewed as a hit to the LGBTQ+ civil rights movement, Skinner-Thompson said it could support challenges to state laws passed in recent years targeting things like gender identity, gender expression and drag shows.
“To the extent queer people in a lot of states are actually being regulated in really oppressive ways, the court seems to have really embraced the idea of a First Amendment as a deregulatory rule,” said Skinner-Thompson. “There’s good reason for the LGBTQ movement to start to embrace more fully the ability of the First Amendment to actually help strike down some of these oppressive laws.”