The Colorado Anti-Discrimination Act
Free Speech
303 Creative LLC v. Elenis
Argued: Dec. 6, 2022
https://www.oyez.org/cases/2022/21-476
https://www.scotusblog.com/case-files/cases/303-creative-llc-v-elenis/
Facts of the case
Lorie Smith is the owner and founder of a graphic design firm, 303 Creative LLC. She wants to expand her business to include wedding websites. However,
she opposes same-sex marriage on religious grounds so does not want to design websites for same-sex weddings. She wants to post a message on her
own website explaining her religious objections to same-sex weddings.
The Colorado Anti-Discrimination Act (“CADA”) prohibits businesses that are open to the public from discriminating on the basis of numerous characteristics,
including sexual orientation. The law defines discrimination not only as refusing to provide goods or services, but also publishing any communication that
says or implies that an individual’s patronage is unwelcome because of a protected characteristic.
Even before the state sought to enforce CADA against her, Smith and her company challenged the law in federal court, alleging numerous constitutional
violations. The district court granted summary judgment for the state, and the U.S. Court of Appeals for the Tenth Circuit affirmed.
Question 1
Does application of the Colorado Anti-Discrimination Act to compel an artist to speak or stay silent violate the Free Speech Clause of the First Amendment?
Sample Solution
Colorado Anti-Discrimination Act (“CADA”) limits a place of public accommodation’s ability to refuse services to a customer based on their identity. 303 Creative LLC V. Elenis. Under CADA, a place of public accommodation includes “any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public.” In particular, the Accommodation Clause prevents a public accommodation from “directly or indirectly” refusing services “to an individual or a group” on account of their sexual orientation. CADA’s Communication Clause prevents a public accommodation from “directly or indirectly” publishing a communication that suggests that their full range of “goods, services, facilities, privileges, advantages, or accommodations” will be refused to a customer on account of their sexual orientation. The enforcement of CADA against artists violates the Free Speech Clause of the First Amendment by compelling artists to speak against their beliefs. The Free Speech Clause is violated if the forced accommodation involves a form of expression and the complaining speaker’s own message was affected by the speech they were forced to accommodate.
