Expressive Businesses Can Now Freely Discriminate. What This Will Mean.

By Charles J. Russo

At issue in one of this year’s most highly anticipated Supreme Court cases, 303 Creative v. Elenis, was what happens when someone’s free speech or beliefs conflict with others’ rights. Specifically, 303 Creative addressed whether a Colorado anti-discrimination law can require a designer who believes marriage is only between a man and a woman to create a wedding website for a same-sex couple.

Two years ago, the 10th Circuit Court of Appeals affirmed that the answer was “yes.”




But on June 30, 2023, a bitterly divided Supreme Court reversed that judgment, holding 6-3 that the free speech clause of the First Amendment prohibited state officials from requiring the designer to create a website that communicates a message with which she disagrees.

As a professor of law who pays particular attention to First Amendment issues involving freedom of religion and speech, I see the case highlighting tension between two competing fundamental interests – ones that clash routinely in 21st century America.

Compelled speech?

The underlying dispute involves graphic artist Lorie Smith, the founder and owner of a studio called 303 Creative. According to court documents, Smith will work with clients of any sexual orientation. However, she will not create content that goes against her religious beliefs, such as “that marriage is a union between one man and one woman.”

Conflict arose when Smith challenged Colorado’s Anti-Discrimination Act, under which it is discriminatory and illegal to refuse services to someone based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin or ancestry.”

In 2016, Smith unsuccessfully sued the members of the state’s Civil Rights Commission and Colorado’s attorney general. She and her attorneys argued that creating a website counts as an act of speech, and so being required to prepare a same-sex wedding website would violate her First Amendment rights: The law would force her to speak, legally referred to as “compelled speech.”




Smith and her attorneys also claimed that requiring her to create a website would violate her First Amendment right to the free exercise of religion.

The federal trial court in Colorado rejected Smith’s attempt to block enforcement of the anti-discrimination law in 2019. When she appealed, a split 10th Circuit affirmed that Smith could not refuse to create websites for same-sex weddings, even if it would have gone against her beliefs. Protecting diverse viewpoints, in the court’s opinion, was a “good in and of itself,” but combating discrimination “is, like individual autonomy, ‘essential’ to our democratic ideals.”

In a lengthy dissent, the chief judge of the 10th Circuit focused on compelled speech. He criticized the panel for taking “the remarkable – and novel – stance that the government may force Ms. Smith to produce messages that violate her conscience.”

SCOTUS speaks

The Supreme Court agreed to hear Smith’s case but limited the issue to free speech, sidestepping the dispute over the free exercise of religion. The question before the court was “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”

Writing for the majority, Justice Neil Gorsuch noted that “First Amendment protections belong to all, not just to speakers whose motives the government finds worthy.”

Gorsuch reviewed the Supreme Court’s cases protecting the rights of individuals not to express themselves. In 1943’s West Virginia Board of Education v. Barnette, for example, the court declared that public officials could not compel students who were Jehovah’s Witnesses to salute the flag, because doing so violated their religious beliefs.

While noting the “vital role public accommodations laws play in realizing the civil rights of all Americans,” Gorsuch reasoned that Colorado could not “force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.”




Further, Gorsuch harshly criticized the dissenting justices’ argument that Colorado’s law focused on business owners’ conduct, not speech, contending that the dissent sidesteps a key question: whether a state can “force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?”

Justice Sonia Sotomayor, whose dissent was joined by Justice Elena Kagan and Justice Ketanji Brown Jackson, lamented the majority’s decision as a time when there is “backlash to the movement for liberty and equality for gender and sexual minorities.”

Sotomayor then argued that under Colorado’s anti-discrimination law, Smith’s “freedom of speech is not abridged in any meaningful sense, factual or legal.” If Smith wants to “advocate the idea that same-sex marriage betrays God’s laws,” Sotomayor made it clear that she can.

Sotomayor went on to decry the ruling for symbolically “mark(ing) gays and lesbians for second-class status.” Denying services to same-sex couples “reminds LGBT people of a painful feeling that they know all too well,” she wrote. “There are some public places where they can be themselves, and some where they cannot.”

Questions ahead

To see how 303 Creative’s impact plays out, it is worth closely watching the parts of the U.S. with anti-discrimination statutes in place. As Justice Gorsuch noted, about half of all states have laws like Colorado’s that “expressly prohibit discrimination based on sexual orientation.” More specifically, 22 states, plus the Virgin Islands and Washington, D.C., offer various forms of protections for LGBTQ+ individuals – including retail stories, restaurants, parks, hotels, doctors’ offices and banks.

I believe 303 Creative presents a challenge for society to come to grips with the tension between two fundamental interests.




One is the Supreme Court’s affirmation of Smith’s key argument: that requiring her to prepare websites that go against her religious beliefs would violate her First Amendment right to freedom of speech.

The other is the interest of same-sex couples in hiring the services they wish – and simply to be treated equally in the eyes of the law, on par with any other potential customers.

Ensuring both freedom of speech and civil rights requires good-faith efforts at respect – and respect is a two-way street. However, exactly what this looks like will likely be the cause of more litigation to come.

Charles J. Russo is Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law at the University of Dayton.

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