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Supreme Court Rules Website Designer’s Right to Free Expression Outweighs Duty Not to Discriminate in Providing Certain “Expressive” Goods and Services



Digesting the multiple decisions from the U.S. Supreme Court is going to take time and Miller Nash’s labor & employment team will provide more substantial insight in due course. In the meantime, however, we wanted to provide some initial impressions of SCOTUS’s decision in 303 Creative LLC et al. v. Elenis et al. We look forward to sharing more thoughts and strategies on this groundbreaking case.

Key Takeaways

  • Federal and state governments cannot force business owners who provide expressive services to the public to provide those services if doing so would be contrary to their sincerely held religious beliefs.
  • There’s an open question of when conduct becomes speech and “pure speech” protected by the First Amendment.
  • The Court appears to read First Amendment protections broadly.
  • The Court’s decision is not a blank license for businesses and employers to avoid compliance with federal and state nondiscrimination laws. Employers are still required to prohibit discrimination, harassment, and retaliation against employees based on protected statuses.
  • Employers can and should still implement and enforce policies and procedures that strive for a welcoming and safe environment for all.

The Underlying Case and Decision

In a 6-3 decision, SCOTUS ruled that the State of Colorado cannot enforce its state anti-discrimination law (the Colorado Anti-Discrimination Act, CO Rev Stat § 24-34-601), which (like the Oregon Public Accommodations Act and the Washington State Civil Rights Act) prohibits discrimination by a place of public accommodation based on, among other things, sex and sexual orientation, against a business owner with Christian beliefs without violating the free speech clause of the First Amendment. The business owner was going to offer wedding websites services but had not carried out her business plans out of fear that Colorado would force her to convey messages inconsistent with her belief that marriage should be reserved to unions between one man and one woman.

The majority relied heavily on the parties’ stipulation that the website designer would design and produce a product that was “pure speech” and “expressive in nature.” It explained that Colorado cannot “force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance” (emphasis added). The majority added:

But, as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong. Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider “unattractive,” . . .“misguided, or even hurtful[.]” But tolerance, not coercion, is our Nation’s answer. 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.

The majority signaled that its decision would provide similar protection to other business owners who provide “pure speech” protected by the First Amendment (e.g., artists, speechwriters, and movie directors). The decision, however, does not stand for the proposition that religious beliefs can be relied on by business owners or employers to avoid nondiscrimination laws in general. Instead, very specific factual circumstances (e.g., stipulations that the website designer’s services were “pure speech” and “expressive in nature”) drove the court’s opinion.

The dissent shared its concerns with the majority’s opinion:

Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class. Specifically, the Court holds that the First Amendment exempts a website design company from a state law that prohibits the company from denying wedding websites to same-sex couples if the company chooses to sell those websites to the public. The Court also holds that the company has a right to post a notice that says, “‘no [wedding websites] will be sold if they will be used for gay marriages.’”

The dissent also expressed concern about what types of businesses might claim to be offering services that are “expressive in nature.”

How Will the Decision Impact Employers

Despite the Court’s holding and the dissent’s outlook on the majority opinion, employers should not rely on 303 Creative to avoid compliance to federal and state nondiscrimination laws. Indeed, the Court ultimately recognized that states have a compelling interest in eliminating discrimination in places of public accommodation, but when they infringe on protected speech, anti-discrimination laws will be narrowly construed.

Notably, 303 Creative LLC arrived a little more than five years after SCOTUS’s decision in Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, which involved a different Colorado resident, a baker who refused to bake a custom cake for a same-sex couple because he believed that baking the cake would violate his religious (Christian) beliefs. There, in a 7-2 decision, the Court determined that the Colorado Civil Rights Commission, which ruled against the baker, violated the free exercise clause by treating the baker unfairly. Specifically, the Court ruled that the Commission was too hostile to his sincere religious beliefs. The Court, however, did not determine whether, or to what extent, a service provider’s sincere religious beliefs might have to yield to the state’s interest in protecting the rights of same-sex couples. The Court also did not decide whether compelling the baker to bake a cake for a same-sex couple would violate his right to freedom of speech.

In the wake of 303 Creative LLC, President Biden issued a statement calling for the swift passage of “the Equality Act, which will enshrine civil rights protections for LGBTQI+ Americans in federal law and strengthen public accommodations protections for all Americans. I urge Congress to swiftly send this legislation to my desk.”

We will be monitoring any federal and state action regarding this recent decision and will provide more updates in the coming weeks and months.

The legal issues impacting this topic are and will continue to be ever-changing (Employment Law in Motion!), and since publication of this blog post, new or additional information not referenced in this blog post may be available.

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