Dec. 16, Dale Carpenter, Dedman School of Law professor, SMU Dallas, for a piece arguing that Colorado should not be able to coerce web designer Lorie Smith to create online material for a gay couple in the celebrated 303 Creative case before the Supreme Court, because to do so would violate her right to freedom of expression. Published in the Boston Globe under the heading Is web design a form of free speech?: https://tinyurl.com/yckmn88h
Last week, the Supreme Court heard oral argument in a case called 303 Creative LLC v. Elenis, which raises the question of whether the state of Colorado can force a graphic designer to create websites for same-sex weddings that she opposes. The argument revealed weaknesses in the government’s case, but also a court that may not give the petitioner everything she wants.
In the case, Lorie Smith proposes to create custom websites only for those weddings uniting a man and a woman. But Colorado’s public accommodations law (like those in 28 other states) prohibits businesses from discriminating on the basis of sexual orientation in the sale of goods and services to the public.
Doing so would violate the First Amendment’s prohibition on compelling speech.
In the case, Lorie Smith proposes to create custom websites only for those weddings uniting a man and a woman. But Colorado’s public accommodations law (like those in 28 other states) prohibits businesses from discriminating on the basis of sexual orientation in the sale of goods and services to the public.
Both the Colorado and federal governments, supporting the state at oral argument, conceded that Smith’s proposed designs are “expressive in nature.” The appeals court, though it ultimately rejected Smith’s constitutional claim, agreed that her bespoke designs are “pure speech.” If the public accommodation law can be applied to Smith’s website designs, she will be compelled to celebrate same-sex unions through her speech.
Therefore, much of the attention during the oral argument focused on whether forcing Smith to create same-sex wedding websites is a permissible regulation of her expression.
One argument emphasized that, while Smith may be speaking through her website designs, the state public accommodations law is not directly a regulation of that speech. Colorado claims that it is preventing Smith only from refusing to serve gay couples, which is a form of discriminatory anti-gay conduct.
According to this view, the state would not dictate the content of Smith’s speech. She can even post messages on the wedding website designs that explicitly denounce same-sex marriages. But she must include such messages on all her wedding website designs, including those she sells to both opposite- and same-sex couples. That may hurt her business, but she will not be violating the state’s anti-discrimination law because she’s treating everyone the same. And her message (her speech) is unaffected, the theory goes, so there’s no First Amendment problem.
Justice Elena Kagan posed a hypothetical that undermined this conclusion. Suppose Smith included a statement proclaiming, “God blesses this union,” on the web pages for opposite-sex weddings only. This practice would violate Colorado’s public accommodations law because it would not treat opposite- and same-sex weddings the same.
But forcing her to make the statement “God blesses this union” on the same-sex wedding sites would compel her to celebrate such weddings. The lawyer for the federal government acknowledged that such a compulsion would not be a mere “incidental” restriction on speech. It would instead be a presumptively unconstitutional direct regulation of speech.
The case would therefore be analogous to a decision by the Supreme Court in 1995, holding that organizers of the annual St. Patrick’s Day-Evacuation Day parade in Boston could not be forced by the Massachusetts public accommodations law to include a contingent of gay, lesbian, and bisexual people marching behind a banner identifying them as such. Compelled inclusion of the marchers behind a banner would be compelled speech.
The Kagan hypothetical exposed the deeper flaw in Colorado’s argument that its anti-discrimination law is directed at conduct rather than speech. Because website design, like a parade, is inherently expressive, this purported regulation of conduct is in fact directed at speech. Identical wording (like “God blesses this union”) on one website takes on a different meaning on another. Context matters, as the federal government conceded.
A second argument equated status-based discrimination (not protected by free speech) with message-based discrimination (protected by free speech). The federal government argued that the distinction between status and message collapses in the case of same-sex marriage: discrimination against same-sex marriage is discrimination against gay people. It’s like a tax on wearing yarmulkes, the Supreme Court suggested in a previous case,which everyone knows is really a tax on Jews. Smith’s refusal to celebrate same-sex weddings is equivalent to status-based anti-gay discrimination.
But there are a number of problems with this argument. Among them is that equating speech against same-sex marriage with discriminatory anti-gay conduct is unprecedented and dangerous. People are entitled to express all manner of views about marriage and other topics. To take the yarmulke example, a tax is not expressive, but a celebration of marriage is.
As formulated by the federal government, the conflation of status and message would also introduce an impermissible viewpoint discrimination. Surprisingly, the federal government argued that a gay web designer could not be compelled to design a website for a Christian organization supporting opposite-sex marriage (even though religious views about marriage are also plausibly linked to the protected status of “religion” under Colorado law). Such a one-way speech rule is antithetical to the First Amendment.
None of this is to suggest that Smith will or should obtain a blanket declaration that she does not have to serve same-sex weddings in any way. Several of the recently appointed conservative justices (including Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh) intimated that such a broad ruling would not be appropriate. For example, it is unlikely the court will rule that Smith may refuse to provide pre-made websites or website formats for same-sex weddings that basically allow customers themselves to fill in details like the time and place of the wedding. The custom-made creations Smith envisions, however, are a different matter.
Since Obergefell v. Hodges, the 2015 Supreme Court decision declaring a fundamental constitutional right of gay couples to marry, there have been hundreds of thousands of same-sex weddings in the United States. Only a tiny portion have encountered wedding service providers who decline to take photographs, arrange flowers, or bake cakes because of objections to same-sex marriages.
The nation’s tradition of pluralism under the First Amendment can accommodate the few expressive providers who object to same-sex marriages without impairing the very real need to protect gay people in the public marketplace. Importantly, and poignantly, the very same tradition of expressive pluralism allowed gay marriage advocates to transform public attitudes about same-sex marriage itself, which led to its protection in the recently enacted Respect for Marriage Act. For the sake of all, that tradition should be preserved in 303 Creative.
Dale Carpenter is a constitutional law professor at Dedman School of Law. SMU Dallas and the author of “Flagrant Conduct: The Story of Lawrence v. Texas.”