Legal Highlights: 303 Creative v Elenis Supreme Court Decision

The following is from Jean Dubofsky, a legal expert & member of Out Boulder County’s Advocacy and Public Policy Committee.
Jean Dubofsky is the first woman to become a Colorado Supreme Court Justice and is a former Deputy Attorney General for Colorado. She was the lead attorney in Romer v Evans, the case that overturned Colorado Amendment 2 in the Supreme Court, a landmark ruling for LGBTQ+ rights.

photo credit: Kenneth Wajda. This photo of Jean is at the rally hosted at Longmont Pride on June 30, 2023, the date of the 303 Creative decision.

The U.S. Supreme Court’s 6-3 decision in 303 Creative v. Elenis, authored by Justice Neil Gorsuch, addressed a conflict between the First Amendment’s free speech clause and Colorado’s public accommodations law that protects LGBTQ+ people, along with racial and ethnic minorities, Jews, and women, among others, from discrimination by businesses in the provision of goods and services available to the public.  The lawsuit was brought by a designer of websites who wanted to expand her business to include wedding websites where she would tell the story of a man and women who were to be married.  She would not design the website for a gay wedding because she would not celebrate a marriage in conflict with her religious views.

The federal constitution’s free speech clause protects speech on a website.  The government of a state cannot compel anyone to say or write anything they do not want to say.  The designer’s attorneys from the conservative law firm, the Alliance for Defending Freedom, chose to bring the lawsuit under the free speech clause rather than the First Amendment’s religious liberty clause because they could obtain a pre-enforcement ruling likely to favor the designer.  Supreme Court cases define speech and provide a procedure for challenging a limit on speech before the limit is enforced.  Thus, the designer could bring her lawsuit before she had designed any websites, alleging that under the public accommodations law, the Colorado Civil Rights Commission (Aubrey Elenis, the defendant in the case, is the executive director of the commission) could punish her for refusing to design a customized website for a gay wedding.

Based on stipulated facts, the Supreme Court ruled that the designer’s speech was creative expression and that she could not be compelled under the state’s public accommodations law to design a website for a gay wedding.  However misguided, this is a narrow decision with limited impact.  As the lawyer for Lambda Legal noted, “few commercial services involve original artwork and pure speech offered for commissions.”  A problem with describing the Court’s ruling as having more immediate impact than it has is the potential for lots of businesses to think that they can refuse to supply ordinary goods and services to the LGBTQ+ community, access to goods and services that Colorado’s public accommodations law continues to protect.

Nevertheless, the ruling can be a foothold for courts to cut back on more public accommodations protections for the LGBTQ+ community, protections that allow access to a wide variety of goods and services and insure a welcoming community.  It will be necessary to be proactive and call attention to any developments that have the potential to expand the ruling in this case.  Moreover, the website designer here said that she would never create expressive websites that encourage violence, demean another person, or defy her religious views.  The Supreme Court recognized that public accommodations laws apply to Black people, Jewish people, women and other protected categories; it will be necessary for all of the protected groups to be vigilant and work together.

Finally, the decision in 303 Creative acknowledged the strides gay Americans have made toward securing equal justice under law, finding much to applaud. The author of the decision wrote the case upholding federal laws that protect LGBTQ+ from employment discrimination.  And the instant decision contains no demeaning or derogatory comments, unlike the Court’s decisions that preceded Romer v. Evans, which held in 1996 that Colorado’s infamous Amendment 2 was unconstitutional, or in the Court’s decision in Dobbs, reversing Roe v. Wade’s protection for abortions.