Summary
Highlights
The hearing begins with the case 21476 303 Creative LLC versus Elenus. Miss Wagner, representing Lorie Smith, argues that Colorado's law compels Smith to create speech that violates her conscience. Smith uses art and technology to create custom messages, serving clients based on the message, not the individual. Wagner asserts that the core of her argument is that Colorado's law forces Smith to create speech rather than merely sell it, and this is a violation of the First Amendment's protection against compelled speech. She references the Hurley case, which established a test for compelled speech, asking if there is speech involved and if the message is affected. Wagner explains that Smith’s objection is to the message of same-sex marriage, which she believes contradicts scripture, rather than to the individuals themselves. She cautions that if the government can compel speech on this topic, it could do so for any speech, religious or political, potentially forcing a Democrat publicist to write a Republican's press release. She also discusses the ripeness of the case, highlighting that Smith's speech has been chilled for six years, unable to market her services fully due to the law.
Justice Sotomayor delivers the dissenting opinion, joined by Justices Kagan and Jackson. She states that five years ago, the court recognized that religious objections to gay marriage do not allow business owners to deny equal access and warned against businesses posting 'no goods or services will be sold if they will be used for gay weddings' signs. Sotomayor asserts that today, the court exempts Smith's company from anti-discrimination law, allowing it to deny wedding websites to same-sex couples and to post a notice refusing service. She calls this 'profoundly wrong,' arguing that the law targets conduct, not speech, and discrimination has never been protected expression. Citing Renan v. McCra (private schools couldn't exclude Black children despite speech-based claim) and law partnership cases, she states that businesses cannot claim First Amendment rights to discriminate. Sotomayor emphasizes that Colorado's law only requires Smith to offer services without discriminating on sexual orientation, not to endorse same-sex marriage. She criticizes the majority for allowing Smith to define her services as 'opposite-sex wedding websites,' equating it to a hotel defining its services as 'whites-only lodging.' This 'contrivance' nullifies public accommodations laws. Sotomayor highlights the historical and current backlash against LGBT rights, emphasizing that these laws prevent social outcasts and ensure dignity. She recounts the history of state-sponsored discrimination against LGBT individuals and the fight for equal access. Sotomayor argues that the decision marks gays and lesbians for 'second-class status,' inflicting stigmatic harm. She fears the decision's logic extends beyond sexual orientation to other protected classes, potentially allowing refusal of service to integrated couples or disabled individuals. She concludes that the meaning of the constitution is in the spirit of the people, asserting that 'invidious discrimination is not one of those values.' She reiterates that in a free and democratic society, there can be no social outcasts, and the public marketplace must reflect this. The court today, she laments, retreats from this promise.
Justice Sotomayor presents a hypothetical involving a website designer, 'Amber,' who creates standard, non-ideological wedding websites but later decides not to create them for same-sex couples. Sotomayor questions if Amber can refuse service. Wagner responds that a speaker can refuse to speak, and if the website involves announcing a wedding that the designer believes is 'false,' then it's compelled content-based speech. Justice Kagan and Justice Gorsuch probe the definition of 'speech' in this context, particularly for standard websites that merely list event details. They question whether merely changing names from 'Lily and Luke' to 'Mike and Harry' fundamentally changes the message in a way that equates to 'compelled speech.' Wagner maintains that even an invitation to celebrate a marriage, if the designer believes the marriage is 'false,' constitutes compelled speech. She clarifies that this is about the message being expressed, not about endorsing the couple. She also distinguishes this from offering 'off-the-shelf' products, arguing that once speech is in the stream of commerce, different rules apply.
The discussion turns to the line-drawing problem, particularly regarding discrimination based on protected characteristics like race or disability versus message-based objections. Justice Sotomayor asks if the ruling implies that designers can refuse service to interracial or disabled couples if they disagree with their marriages. Wagner clarifies that the Hurley framework still applies: is the speech creator otherwise serving those in the protected class and expressing other messages? She states that Smith serves LGBT clients in other capacities and her objection is solely message-based, tied to her belief about marriage. She argues that the core principle is that no one should be compelled to express a message that violates their core convictions. Justice Jackson presents a hypothetical of a photography business refusing to photograph non-white children with Santa to maintain an 'authentic' 1940s Christmas scene. Wagner struggles to draw a clear line here, suggesting that the objection is not 'in the photograph,' but later concedes it could be an 'edge case.' The core argument from Smith's side is that the objection is to the message being created, not the identity of the client. This distinction is crucial, with Justice Kagan pointing out that the identical website for different-sex versus same-sex couples means the difference is solely the identity of the couple.
Mr. Olsson, representing Colorado, begins his argument by stating that the central dispute is about public accommodations law targeting commercial conduct, not expression. He argues that Colorado's law regulates discriminatory sales, and any effect on expression is incidental, falling under the O'Brien framework. Olsson emphasizes that while Smith can choose the content of services she offers (e.g., only biblical quotes about marriage), she cannot refuse service to gay couples. Granting Smith an exemption, he warns, would open the door for any business with 'expressive services' to discriminate based on disability, sexual orientation, religion, or race. Justice Thomas questions the historical tradition of public accommodations laws applying to speech. Olsson concedes that historical record is sparse on speech-specific cases but asserts that such laws traditionally do not carve out exceptions for speech. Chief Justice Roberts presses on the relevance of Rumsfeld v. Fair, where empty rooms do not 'speak.' Olsson argues that in Rumsfeld, incidental speech was compelled for equal access, similar to Colorado's law.
Justice Alito and other justices present hypotheticals challenging how Colorado distinguishes between message and status-based discrimination. Alito asks about a Jewish website designer refusing service to an interfaith couple due to religious objections to intermarriage. Olsson replies that the designer can define explicit content but cannot refuse to sell a service based on a customer's religion. If a Jewish designer offers general services, they must offer them regardless of religion. Justice Sotomayor asks if it would be the first time the court allows a business open to the public to refuse service based on protected characteristics. Olsson confirms this. Justice Gorsuch points to stipulated facts that Smith's work is 'customized, personalized, and expressive.' Olsson acknowledges this but says it doesn't change the analysis, as Smith still seeks to turn away all same-sex customers. Justice Jackson raises her Santa hypothetical again, asking if a photographer's desire for 'authentic' historical scenes (excluding minorities) would be protected. Olsson states that if such a photographer is discriminatory, it would be a concern, as it would be interpreted as status-based discrimination.
Justice Gorsuch delivers the majority opinion, reversing the 10th Circuit's decision. He states that Lorie Smith's 303 Creative designs custom websites and, by stipulation, serves all customers regardless of status but is selective about the messages her work conveys. Smith wants to expand into custom wedding websites but fears Colorado will compel her to create messages celebrating same-sex marriages, which conflict with her belief that marriage is between one man and one woman. The parties stipulated that Smith's websites are 'expressive creations' protected by the First Amendment and that Colorado would force her to produce speech she does not believe, with the purpose of 'eliminating ideas with which it disagrees.' The court reaffirms the First Amendment principle: 'no government official can prescribe what shall be orthodox.' Gorsuch cites historical cases like Barnett (compelled Pledge of Allegiance), Hurley (gay pride float in parade), and Masterpiece Cake Shop, where the court consistently protected unpopular speech and refused government compulsion. He emphasizes that while Colorado's public accommodations law is vital for preventing status-based discrimination, it cannot override the First Amendment to police speech. The majority critiques the dissent for 'reimagining the facts' and ignoring stipulations, such as Smith's willingness to serve all persons and the expressive nature of her work. Gorsuch poses rhetorical questions about compelling a Muslim director to make a Zionist film or a gay designer to create anti-gay marriage websites, highlighting the dangerous implications if the state can compel speech. He concludes that tolerance, not coercion, is the nation's answer, and the First Amendment ensures a society where all persons can think and speak as they wish, not as the government demands.
Miss Wagner, in rebuttal, reiterates that the United States' argument is flawed because it restricts the messages that can be refused, specifically targeting views on marriage that contradict the government's stance. She argues that the court's prior cases consistently applied a 'message affected' test, which would be undermined if ruled against Smith. Wagner distinguishes 303 Creative from Rumsfeld v. Fair, explaining that the latter involved access to empty rooms and logistical emails, not compelled creation of expressive content. She emphasizes that Smith's creative work involves 'speech' rather than mere 'service.' She criticizes the notion that third-party perceptions should determine whose speech it is, citing prior cases where the government lacked authority to compel speech. Wagner argues that Colorado's expanded definition of 'public accommodation' is too broad, potentially forcing individuals with small businesses to compromise their First Amendment rights. She insists on a clear 'bright line' rule: if a message is affected, it is protected, contrasting plug-and-play services with custom creations. She reminds the court that Smith's views on marriage are considered 'honorable and decent' by the court and that compelled speech is a tool of authoritarianism. Smith seeks message-based protection that the First Amendment already provides. The case is submitted following her rebuttal.