On Monday, the Supreme Court hears oral argument in 303 Creative v. Elenis, which presents once again the clash between nondiscrimination norms and the First Amendment’s protection of freedom of speech.
In the stunning ruling below, a divided panel of the Tenth Circuit held that Colorado’s Anti-Discrimination Act “permissibly compels” a graphic and website design company to offer wedding websites that “celebrate same-sex marriages” if it is going to offer wedding websites that celebrate opposite-sex marriages. The Tenth Circuit majority actually started off very soundly: it recognized that Lorie Smith, the owner of 303 Creative, is engaged in “pure speech” when she creates wedding websites, that the websites “express approval and celebration of the couple’s marriage,” that the Colorado law compels Smith to engage in speech that she opposes, and that the law is therefore subject to strict scrutiny.
But in applying strict scrutiny, the majority went completely off the rails in its inquiry into whether the Colorado law was “narrowly tailored.” It ruled that by offering “custom and unique services” and declining to provide those services for same-sex marriages, Smith was “relegat[ing] LBGT consumers to an inferior market,” as those consumers would somehow “never be able to obtain wedding-related services of the same quality and nature as those that [Smith] offer[s].” For the majority, it didn’t matter that there are lots of other website design companies that can provide custom wedding websites that celebrate same-sex marriages. As Judge Timothy Tymkovich observed in dissent, the majority’s approach, “[t]aken to its logical end, [would mean that] the government could regulate the messages communicated by all artists, forcing them to promote messages approved by the government in the name of ‘ensuring access to the commercial marketplace.’”
Given how mind-numbingly stupid the Tenth Circuit majority’s approach is, it’s no surprise that Colorado is not defending that approach in the Supreme Court. But without the terrible wrong turn that the Tenth Circuit majority took at the end, this strikes me as a very simple case, one that ought to earn a unanimous ruling in favor of 303 Creative. The Colorado law’s application to Smith’s creation of wedding websites is indeed subject to strict scrutiny, and, as the Tenth Circuit majority recognized, the Supreme Court’s unanimous ruling in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995) squarely forecloses the argument that the law is narrowly tailored to prevent dignitary harms. (I was pleased to take part in a moot court way back then for Chester Darling, the attorney who argued and won the case on behalf of the parade organizers.)
While it should be intuitively obvious that Smith’s wedding websites constitute artistic speech, the case calls for the Court to spell out why that intuition is sound. For this purpose, I highly recommend the Public Discourse essay that Sherif Girgis, now a law professor at Notre Dame, wrote five years ago when a previous case from Colorado, Masterpiece Cakeshop v. Colorado Civil Rights Commission, was pending. As Girgis explains, under the Court’s broad standard for artistic speech, a thing should qualify as artistic speech if its creator “(1) draws on his artistic talents and skills to (2) choose from an endless array of shapes, colors, designs, and decorations, in producing something that will then (3) be judged mainly for its aesthetic qualities.” (His emphasis.)
As Girgis further explains, artistic creations for weddings—things like websites, flowers, and wedding cakes—send a celebratory message. So an artist like Smith who is forced by law to create something that expresses a message she rejects is being compelled to speak in violation of her First Amendment free-speech rights. (The fact that the compulsion is a condition that attaches to her exercise of her free-speech rights—her creation of wedding websites for marriages she celebrates—rather than a stand-alone obligation changes nothing. Other compelled-speech cases have the same feature. The Massachusetts law in Hurley, for example, applied to the veterans groups only because they chose to hold a parade.)
I won’t summarize Girgis’s full argument here, but I hope very much that it receives the attention it deserves.