Five years after Colorado's handling of a charge brought under its Antidiscrimination Act (CADA) was before the Supreme Court in the context of wedding cake design, the Court held today in a 6-3 decision that Colorado cannot use that same law to require a website designer to design websites for same sex weddings if she believes doing so would be a violation of her religious beliefs.
The website designer, seeking to expand her website and graphic design business to include website design for weddings, sought an injunction against the State of Colorado to prevent it from using the public accommodations provisions of CADA to force her to create websites for same-sex weddings, citing her concern after Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.
In Masterpiece, an expert baker declined to provide cakes for same-sex weddings on account of his religious beliefs. A same-sex couple filed a charge with the Colorado Civil Rights Commission, resulting in a finding that the baker had violated the public accommodations provisions of CADA. The Supreme Court found that the State's procedural handling of the charge violated the First Amendment because it was not objective and demonstrated a hostility towards a particular religious viewpoint. The Court stopped short, however, of deciding whether the baker's refusal to provide cakes for same-sex weddings was, in and of itself, protected by the First Amendment.
That was the issue before the Court in 303 Creative. The district court ruled against the website designer. The Tenth Circuit Court of Appeals held that the website designs were "pure speech" but that the State of Colorado had carried its burden under strict scrutiny to justify forcing the website designer to "create speech." Specifically, the state's interest in ensuring "equal access to publicly available goods and services" was compelling, and as the website designer's services were "unique" because they were personal to her, nothing short of compelling her to design for same-sex weddings satisfied that compelling interest.
Before the Supreme Court, Colorado argued that website design is not "pure speech" but rather an ordinary commercial product that the website designer must sell to all if she sells to any. As a result, the State argued, it could compel the website designer to repurpose designs she had already created for same-sex weddings. The Court disagreed, noting that the parties stipulated that each website was unique and customized to the particular client, a key feature of "pure speech."
The Court also rejected Colorado's argument that it could compel the website designer to design same-sex wedding websites because the reason she refused to do so was an objection to the customers "protected characteristics." The parties stipulated that the website designer has no issue with designing websites for any customer, including gay, lesbian, or bisexual customers, so long as the message of the website does not violate her beliefs. Moreover, the Court noted, the First Amendment protects speech even if the government disagrees with the point of view reflected in the speech.
The Court also was untroubled by the fact that the website designer accepted money in exchange for her services. In demonstrating the breadth of Colorado's approach, as applied to commercial activity, the Court explained, quoting from Tenth Circuit Chief Judge Tymkovich's dissent, that Colorado's position would force "an unwilling Muslim movie director to make a film with a Zionist message" or compel an "atheist muralist to accept a commission celebrating Evangelical zeal."
opens up a great many questions about the breadth of First Amendment protections in commerce and the interaction of those protections with civil rights laws. We will have years of waiting for more opinions from courts looking at these issues before that intersection becomes clear.