303 Creative: Renewing Our Faith in the Right to Free Speech

By Benjamin Marsh¹

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On June 30, 2023, the Supreme Court issued an important decision regarding the right of Free Speech — a fundamental right protected under the First Amendment. The Court’s ruling in 303 Creative v. Elenis marks a consequential victory for ardent supporters of First Amendment rights and the rule of law.  

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Background

With the possible exception of the affirmative action cases, 303 Creative v. Elenis was perhaps the most controversial case before the Supreme Court this term (at least in the eyes of the public). In many respects, the case became so controversial and hotly contested because people could not agree upon the essence of the issue the Court would be deciding. In the lead up to the Court’s decision, the discussion surrounding the case largely devolved into two sides talking past each other. For one side, it was clear that the issue was whether the state of Colorado could compel a website designer to engage in speech with which she did not agree. For the other side, it was equally clear that the issue was whether a website designer would be given the right to discriminate against LGBTQ individuals. In its decision, the Supreme Court stated unequivocally that 303 Creative was a case about the fundamental right of free speech — it was never about licensing discrimination.  

The Court’s decision in 303 Creative was also so highly anticipated for its potential to finally provide an answer to the question left unresolved in the 2018 case Masterpiece Cakeshop v. Colorado Civil Rights Commission. In Masterpiece Cakeshop, a Colorado baker named Jack Phillips was sued for alleged discrimination when he declined to design a wedding cake for a same-sex couple. In his defense, Mr. Phillips asserted that he had a sincerely held religious belief that his work could only endorse or support marriage between one man and one woman. Therefore, Mr. Phillips argued that he had a constitutional right under both the Free Speech and Free Exercises clauses of the First Amendment to design wedding cakes according to his religious beliefs.  

However, the Supreme Court ultimately never reached the free speech question in Masterpiece Cakeshop. The Court instead decided the case in favor of Mr. Phillip’s on much narrower free exercise grounds, holding that the Colorado Civil Rights Commission was impermissibly hostile to Mr. Phillip’s religious beliefs and did not give Mr. Phillips neutral treatment as the law required. Because the free speech question was left unresolved in Masterpiece Cakeshop, the Court’s decision in 303 Creative was eagerly awaited as the answer to this question.

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Facts

Lorie Smith, a devout Christian living in Colorado, is a website and graphic designer who wanted to expand her business to include wedding websites. However, because Ms. Smith’s faith teaches her that marriage is reserved solely for the union between one man and one woman, Ms. Smith’s conscience would require her to design websites only for weddings between one man and one woman.  

Colorado has a public accommodation law called the “Colorado Anti-Discrimination Act” (CADA), which is extremely broad and defines “public accommodation” to include almost every business that provides goods or services to the public. CADA prohibits all public accommodations from denying “the full and equal enjoyment” of the goods and services they provide to any customer based on certain protected characteristics, including sexual orientation. CADA also prohibits any communication or notice that says a business will not offer a particular good or provide a particular service to a customer based on one of these protected characteristics.  

While Ms. Smith hoped to begin offering and designing wedding websites, she worried that Colorado would use this law to compel her to create websites for same-sex couples as well. For Ms. Smith, forcing her to create such websites would compel her to violate her sincerely held religious beliefs.  

In order to clarify her rights, Ms. Smith filed a lawsuit seeking an injunction that would prevent Colorado from applying CADA to her plans to design wedding websites according to her religious beliefs. The district court that first heard her case held that Ms. Smith was not entitled to that injunction², and the appeals court affirmed the district court’s holding³. The Supreme Court agreed to hear Ms. Smith’s case.

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Issue

The actual issue before the Court was articulated clearly: Would Colorado’s use of its Anti-Discrimination act to compel an artist to create expressive designs that speak messages with which she disagrees violate the Free Speech Clause of the First Amendment?

Before turning to the Court’s answer to this question, it is important to highlight a number of facts that Ms. Smith and Colorado stipulated to before the case was actually argued:

• Ms. Smith was willing to work with all people regardless of their race, creed, sexual orientation, or gender and would gladly make other custom graphics or websites for clients of any sexual orientation.
• Ms. Smith would not produce content that “contradicts biblical truth” no matter who requested it.
• Ms. Smith’s belief that marriage is reserved solely for the union between one man and one woman is a sincerely held tenet of her faith.
• Ms. Smith’s website designs were “expressive” and contributed to the “overall message” her business conveys.
• The wedding websites Ms. Smith planned to create were “expressive in nature,” would be “customized and tailored,” and would “express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage.
• Viewers of Ms. Smith’s websites would know they were her original artwork.
• There are many other companies in Colorado and around the country that offer custom website design services.  

These stipulations turned out to be very important in the case, and they ultimately showed that 303 Creative was about protecting Ms. Smith’s First Amendment right not to be compelled to speak messages with which she disagrees. It was never a case about endorsing discrimination.

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The Court’s Decision

The Supreme Court held that the First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.  

Writing for a 6-3 majority, (unfortunately) split along what are often characterized as ideological lines, Justice Neil Gorsuch delivered the Court’s opinion. After a discussion of the parties’ stipulations of fact, the majority performed a comprehensive and straightforward application of the Courts’ well-established Free Speech jurisprudence and held that compelling Ms. Smith to “either speak as the State demands or face sanctions for expressing her own beliefs” is an “impermissible abridgment of the First Amendment’s right to speak freely.” As Justice Gorsuch explained, “The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.” For the Supreme Court, because Colorado sought to deny that promise, Lorie Smith must prevail.  

Justice Sonia Sotomayor wrote the dissent on behalf of the three more liberal Justices. Instead of focusing on speech, the dissent centered its argument around the idea that Colorado was attempting to regulate conduct rather than speech. According to the dissent, CADA was a law of general applicability. It furthered the compelling government interest of ensuring equal access to the marketplace and was the least restrictive means of doing so. Therefore, Colorado’s law passed constitutional muster. The dissent claimed it was not Ms. Smith’s speech that was at issue, but rather her conduct of discrimination against same-sex couples.  

As noted above, the dissent’s argument ultimately failed. But it goes straight to the core of so many of our political, societal, and cultural disagreements today. Not only do we frequently disagree on the best answer to a contested issue, but we are all too often failing to even agree on what the issue actually is.  

Was Dobbs about taking away a woman’s control over her own body and legally mandating forced childbirth? Was it about protecting the life of an unborn child and expressly valuing that life over the life of the mother? Or was it about the fact that an absolute right to abortion is nowhere to be found in the Constitution and that decisions on the issue should be returned to the legislatures? Was Students for Fair Admission about rejecting racial diversity, preventing minority populations from attending the same elite colleges and universities as their white peers, and refusing to acknowledge historical harms minorities have suffered? Or was it about abiding by the Equal Protection Clause of the Fourteenth Amendment and ending the practice of colleges and universities making admissions decisions through an explicitly discriminatory selection system based on the race of the applicant?

Fortunately, the Supreme Court does not adjudicate public disputes over what makes a person or a policy good or bad. The Court defines the legal questions to be answered, and it decides the cases that come before it based on the particular facts presented by the particular parties. Sometimes, the Court’s rulings have widespread and sweeping effects and implications. At other times, the Court’s rulings affect only the parties involved. As for the Court’s ruling in 303 Creative, the broader effects remain to be seen. Will the ruling in 303 Creative apply to bands? What about photographers or florists? What about only wedding bands and wedding photographers? Perhaps the rule applies only when a person is willing to provide other services generally, with an exception for weddings, but will not apply if the only services they provide are wedding-related. Only time will tell.  Similar cases will almost certainly be litigated around the country in an effort to resolve these unanswered questions.  

In this case, the Supreme Court chose to protect Ms. Smith’s First Amendment right not to be compelled to express a message with which she did not agree, and which was contrary to her faith. 303 Creative represents an important victory for free speech. For Ms. Smith, the decision affirms her right to fully live her faith.  

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So What, If Anything, Does This Mean for Your Faith-Based Nonprofit?

1. Remain vigilant in understanding your state’s public accommodations laws and requirements.

While there were certainly religious liberty overtones in 303 Creative, the Supreme Court ultimately decided this case on Free Speech grounds. As such, public accommodation requirements in your state likely still apply to organizations that are providing goods and services to the public. If your organization is providing events and programs that are open to the public, those events and programs are likely still public accommodations covered by the law. Therefore, you must continue to meet the requirements of your state’s public accommodations law.

2. Be wary of making big decisions based on the 303 Creative ruling, and instead focus on the relevant religious exemptions your state provides.

It remains to be seen how broadly Free Speech protections will apply to faith-based organizations. However, there may already be relevant religious exemptions in your state that allow you to continue your ministry in adherence to your faith without coming into conflict with your state’s public accommodations laws. In many cases, the government cannot compel a faith-based nonprofit to choose between its sincerely held religious beliefs and compliance with laws that burden religious liberty unless the government shows a very high burden has been met. For example, your state may have a state Religious Freedom Restoration Act or an applicable exemption from its public accommodations law for faith-based organizations. Napa Legal’s Faith and Freedom Index is an excellent resource to examine how your state fares in protecting your religious liberty. As always, it is best to consult with an attorney if you are unsure whether your organization’s events or programs qualify for a religious exemption to public accommodations laws.

3. Continue to advocate for laws protecting religious liberty in your town, city, and state.

While the ruling in 303 Creative is certainly an important victory for religious liberty and free speech, there is still much more that needs to be done. Much of this work and advocacy can take place at the local level, where leaders often experience less pressure from the divisive and competing interests that control much of the conversations on the national level. Working for religious liberty reforms, particularly those involving religious exemptions to public accommodations laws and similar statutes, can have a profound impact on your faith-based organization and on your local community. The principle of subsidiarity is too often lost in our conversations surrounding religious liberty today, and it is imperative that the fight for a return to local governance and decision-making is not abandoned.  

4. Celebrate, be thankful, and pray.

The Court’s decision in 303 Creative was an important victory and vindication of Lorie Smith’s right not to be compelled to violate her beliefs. This should indeed be celebrated; it is a decision that every person of faith should be thankful for. Yet more needs to be done. Pray for those who rely on the critical services your faith-based organization provides. Pray for the strength and courage to continue working to promote a culture that allows your organization to flourish without having to choose between faithfulness and compliance with burdensome laws. Pray for those who would have you deny your faith and compel you to live according to a secular worldview. Above all, never give up hope.

“Keep alert, stand firm in your faith, be courageous, be strong. Let all that you do be done in love.”

— 1 Corinthians 16:13-14

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¹ Benjamin is Napa Legal's 2023 Summer Legal Fellow. Ben is a born and raised Washingtonian and rising 2L law student in Washington, DC. He completed his first-year J.D. coursework at The Catholic University of America, Columbus School of law and will be continuing his legal education at the Georgetown University Law Center in Fall 2023. While a 1L at Catholic, Ben was a Junior Fellow with the Project on Constitutional Originalism and the Catholic Intellectual Tradition and a member of the St. John Paul II Guild of Catholic Lawyers. Prior to law school, he received his B.A. in Psychology from The Catholic University of America where he graduated summa cum laude and Phi Beta Kappa, and he is also a proud alumnus of St. Anselm’s Abbey School in northwest DC.

² 405 F. Supp. 3d 907, 912 (Colo. 2019)

³ 6 F.4th 1160, 1168 (10th Cir. 2021)

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