Artistic expression as religious commercial speech: Businesses face new challenges

Can a web-designer refuse to serve gay couples because doing so would violate her religious beliefs? In 303 Creative LLC v. Elenis, the U.S. Supreme Court gave the surprising answer “Yes” when the service is linked to artistic expression.

Background

Lorie Smith is a graphic designer and owner of 303 Creative LLC, a commercial enterprise certified to do business in Colorado and receiving benefits as a corporation. She hadn’t yet expanded her services to include creating wedding websites, but before she did, she filed suit seeking to stop the Colorado Civil Rights Commission from enforcing the state’s antidiscrimination law against her because she refused to provide services for same-sex weddings. She claimed forcing her to comply with Colorado’s Anti-Discrimination Act (CADA) would violate her First Amendment Right against compelled speech in violation of her sincerely held religious belief that marriage should only be between a man and a woman.

Like numerous public accommodation laws throughout the country, CADA provides that businesses must serve all customers without regard for their status, including sexual preference. Both the district court and the conservative U.S. 10th Circuit Court of Appeals rejected her suit. Surprisingly, the U.S. Supreme Court agreed to hear the case despite its embryonic state—e.g., no spurned customer and no enforcement action against 303 Creative. It appeared the Court wanted to find an opportunity to expand religious rights.

Case decided on free speech, not religious issues